State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 520148 

________________________________

TAMMY McLAUGHLIN,

Appellant,

v

22 NEW SCOTLAND AVENUE, LLC, MEMORANDUM AND ORDER

Respondent.

ALBANY MEDICAL CENTER HOSPITAL,

Respondent.

________________________________

Calendar Date: September 11, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

DeGraff, Foy & Kunz, LLP, Albany (Nicole R. Rodgers of

counsel), for appellant.

Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Peter B.

Balouskas of counsel), for 22 New Scotland Avenue, LLC,

respondent.

Maynard, O'Connor, Smith, Catalinotto, LLP, Albany (Robert

A. Rausch of counsel), for Albany Medical Center Hospital,

respondent.

__________

Clark, J.

Appeal from an order of the Supreme Court (Connolly, J.),

entered August 11, 2014 in Albany County, which, among other

things, granted defendant's motion for summary judgment

dismissing the complaint.

At approximately 8:30 a.m. on February 21, 2011, plaintiff
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slipped and fell while descending an access ramp outside Albany

Medical Center Hospital (hereinafter AMCH) in the City of Albany

resulting in an injury to her wrist. The premises is – and was

at all relevant times – owned by defendant and leased by AMCH. 

Plaintiff thereafter commenced this negligence action against

defendant seeking to recover for her injuries. Following joinder

of issue, defendant moved for summary judgment dismissing the

complaint on the grounds that it was an out-of-possession

landlord and the storm in progress doctrine applied. On June 16,

2014, plaintiff cross-moved to amend the complaint to add AMCH as

a defendant. Supreme Court granted defendant's motion for

summary judgment dismissing the complaint and denied plaintiff's

cross motion. Plaintiff now appeals.

Initially, we agree with plaintiff that Supreme Court

improperly granted defendant's motion for summary judgment on the

basis of the storm in progress doctrine. Such doctrine

recognizes the "realities of problems caused by winter weather"

(Hilsman v Sarwil Assoc., L.P., 13 AD3d 692, 693 [2004] [internal

quotation marks and citation omitted]) and relieves property

owners from liability for dangerous snowy or icy conditions

caused by an "ongoing hazardous weather condition" by affording

them a reasonable amount of time after the storm to remediate

dangerous conditions (Zima v North Colonie Cent. School Dist.,

225 AD2d 993, 994 [1996]; see Solazzo v New York City Tr. Auth.,

6 NY3d 734, 735 [2005]). A lull or break in the winter storm,

however, does not trigger a defendant's duty to clear snow and

ice (see Grinnell v Phil Rose Apts., LLC, 60 AD3d 1256, 1256-1257

[2009]; Ioele v Wal-Mart Stores, 290 AD2d 614, 616 [2002]). 

Here, although defendant carried its prima facie burden by

establishing that plaintiff's injury "was precipitated by a

hazardous snow or ice-related condition caused by an ongoing

storm" (Howard v J.A.J. Realty Enters., 283 AD2d 854, 855 [2001];

see Sanders v Wal-Mart Stores, Inc., 9 AD3d 595, 595 [2004]),

plaintiff likewise met her shifted burden of demonstrating a

material issue of fact. Specifically, plaintiff was able to

adequately demonstrate the possibility that the ice that had

caused her to fall existed prior to the storm in progress and

that defendant had either actual or constructive notice of the

hazard (see O'Neil v Ric Warrensburg Assoc., LLC, 90 AD3d 1126,
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1126-1127 [2011]). Thus, viewing the evidence in the light most

favorable to plaintiff, as we must (see e.g. Cross v Labombard,

127 AD3d 1355, 1356 [2015]), Supreme Court improperly determined

that summary judgment was appropriate on the basis of the storm

in progress doctrine. 

However, we nonetheless find that dismissal of plaintiff's

complaint was warranted. "'As a general rule, an out-ofpossession landlord is not responsible for dangerous conditions

existing upon leased premises after possession of the premises

has been transferred to the tenant. Exceptions to this rule

include situations where the landlord retains control of the

premises, has specifically contracted to repair or maintain the

property, has through a course of conduct assumed a

responsibility to maintain or repair the property or has

affirmatively created a dangerous condition' thereon" (Pomeroy v

Gelber, 117 AD3d 1161, 1162 [2014], quoting Vanderlyn v Daly, 97

AD3d 1053, 1055 [2012], lv denied 20 NY3d 853 [2012] [internal

quotation marks and citations omitted]). 

Here, an affidavit from Richard Rossen, a member of

defendant, demonstrates that defendant owns the premises, which

is – and was at the time of plaintiff's accident – leased to

AMCH. He stated that, upon leasing the premises, defendant

transferred possession and control of the premises to AMCH, did

not retain any contractual obligation to perform snow or ice

maintenance, did not perform or hire another entity to perform

such maintenance and was unaware of any dangerous condition that

may have existed at the time of the accident. The lease further

provided that AMCH would be responsible for snow removal at its

own expense. Gary Ruger, the director of maintenance for AMCH,

testified at his deposition that he supervises the maintenance

for the premises, which includes snow and ice removal from

sidewalks and entrances. Ruger also testified that AMCH

maintenance staff are trained in how to clear the access ramps. 

Thus, defendant met its prima facie burden of demonstrating its

entitlement to summary judgment on the basis that it was an outof-possession landlord (see Holling v Dawn M., Inc., 24 AD3d

1010, 1010-1011 [2005], lv denied 7 NY3d 704 [2006]; Hinds v

Consolidated Rail Corp., 263 AD2d 590, 591-592 [1999]). 
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Contrary to plaintiff's position, the management agreement

between defendant and another company is insufficient to meet her

shifted burden of raising a triable issue of material fact. 

Specifically, such agreement provides that AMCH "shall make all

repairs and perform all maintenance on the building,

appurtenances and grounds," while the other company merely has a

duty to conduct periodic inspections of the premises and report

any shortcomings in maintenance responsibilities to defendant. 

Thus, on the record before us, plaintiff failed to show that

defendant, as an out-of-possession landlord, exercised any

control over the premises. Accordingly, summary judgment was

properly granted to defendant on this issue (see Whittington v

Champlain Ctr. N. LLC, 123 AD3d 1253, 1254-1255 [2014]; Brown v

BT-Newyo, LLC, 93 AD3d 1138, 1139 [2012], lv denied 19 NY3d 815

[2012]; Del Giacco v Noteworthy Co., 175 AD2d 516, 518 [1991]). 

We also conclude that Supreme Court properly denied

plaintiff's cross motion to amend her complaint to assert a cause

of action against AMCH after the running of the applicable

statute of limitations period (see CPLR 214 [5]). In this

regard, the relation back doctrine permits a plaintiff to amend

the complaint to add a defendant even though the statute of

limitations had expired at the time of amendment so long as three

requirements are met: "(1) both claims must arise out of the same

occurrence, (2) [the] defendant and [the new party] were united

in interest, and by reason of that relationship can be charged

with notice of the institution of the action such that it will

not be prejudiced in maintaining a defense on the merits, and (3)

[the new party] knew or should have known that, but for a mistake

by [the] plaintiff as to the identity of the proper party, the

action would have been brought against it as well " (Mongardi v

BJ's Wholesale Club, Inc., 45 AD3d 1149, 1150 [2007]). While

there is no dispute that the first prong of this test is

satisfied under these circumstances, we agree with Supreme Court

that defendant and AMCH do not share unity of interest inasmuch

as they cannot be said to "stand or fall together" (Zehnick v

Meadowbrook II Assoc., 20 AD3d 793, 796-797 [2005], lv dismissed

and denied 5 NY3d 873 [2005]; see Matter of Ayuda Re Funding, LLC

v Town of Liberty, 121 AD3d 1474, 1475-1476 [2014]). "Indeed,

unless the original defendant and new party are vicariously

liable for the acts of the other[,] there is no unity of interest
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between them" (Zehnick v Meadowbrook II Assoc., 20 AD3d at

796-797 [internal quotation marks, ellipsis and citation

omitted]). Thus, Supreme Court properly denied plaintiff's cross

motion to amend the complaint. 

Defendant's remaining contention is found to be without

merit.

McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs.

ENTER:

Robert D. Mayberger

Clerk of the Court