A written agreement between the State and Woods set forth the duties and
responsibilities of the parties (Ex. A of Defendant's Reply Papers,
"Agreement"). The agreement provided that Woods would occupy Camp No. SB-5 for
camping purposes between November 1st and October 31st of each year from
November 1, 1993 until October 31, 1995. Woods was responsible for "keeping the
buildings, grounds and equipment in good order at all times and returning the
premises in the same condition as it was in the beginning of the term"
(Agreement, ¶ 12). A camp inspection was to be conducted by defendant on
September 30th of each year to determine the damages to be repaired by Woods
prior to the next operating season (Id.). "All indoor and outdoor
lighting fixtures" were to be maintained by Woods and "all kitchen equipment,
beds, tables, chairs, infirmary equipment, boats, oars, life jackets, heaters
(including furnaces, hot water) [were to] be owned and maintained" by Woods
(Agreement, p. 9). The State agreed to maintain 1.7 miles of the entrance road,
including plowing and sanding, and Woods agreed to maintain all the blacktop
paths within the camp (Id. at p. 9). The State was responsible for
"major maintenance of buildings, park water supply, sewage disposal plant, water
and sewage lines, electrical lines, removal of dead trees, and garbage removal"
(Id.). The parties further agreed that a resident director and a
permanent maintenance person would be provided on an annual basis and a seasonal
maintenance person would be provided from May 1 to October 31, the cost of which
to be paid by Woods (Id.).
The EBT testimony of Thomas Kelly, the State's park manager since October of
1992, was submitted on the motion. Kelly supervised the maintenance of 32 group
camps, which comprised approximately 1200 buildings, with each camp utilizing 30
to 40 buildings (EBT, pp. 6, 8). Kelly's staff consisted of 12 people who
performed maintenance work on the water and sewer plants, repaired and replaced
roofs, paved roads and plowed snow (EBT, pp. 10-11). When asked at the EBT, "To
your knowledge, is there always a State employee on the premises [of Woods] ?"
(EBT, p. 19). Kelly responded, "No there isn't" (EBT, p. 19).
Consistent with the agreement, Kelly stated that Woods owned all the
equipment, including the fan which Kelly described as a six foot pedestal fan
with three blades that were covered by a metal cage (EBT, pp. 7-8). Kelly
explained, "The State just owns the property and the buildings." Woods runs
"the day-to-day operation of the camp" (EBT, pp. 12-13), which would include
"plugging in any fans" (EBT, pp. 13-14). Kelly was asked, "In regard to
maintenance, if there was ever a problem with a fan, would you or someone from
your crew be required to maintain these fans, or that's solely on [Woods] ?"
(EBT, p. 15). Kelly answered, "The operating equipment for the day-to-day
operating equipment is the responsibility of the camp operator" (EBT, p. 15).
Kelly further noted that the State did not require the operator of the camp to
keep any records regarding repairs to their equipment, nor was the State aware
of whether such records were kept by Woods (EBT, p. 16). While Kelly would
become aware of any incident reports filed by Woods, he had no knowledge of any
incidents with a fan prior to claimant's accident (EBT, p. 17). Kelly
explained, "Most of the camps' operators would deal with that kind of thing ***"
(EBT, p. 20). When asked if the camps were supervised by the State, Kelly
responded, "No. They have to conform to the sanitary codes, State Health Code,
sanitary code. *** There are rules and regulations as far as boats used on the
lakes in the park" (EBT, p. 26).
Claimants argue that the agreement and the EBT testimony of Thomas Kelly raise
triable issues of fact as to whether defendant was responsible, either
exclusively or co-extensively with Woods, for the repair and maintenance of the
camp's instrumentalities (Claimant's Memorandum of Law at p. 15).
"[S]ummary judgment is a drastic remedy and should not be granted where there
is any doubt as to the existence of a triable issue" (Rotuba Extruders v
Ceppos, 46 NY2d 223, 231 quoting Moskowitz v Garlock, 23 AD2d
943, 944), and "negligence cases by their very nature do not lend themselves to
summary dismissal ‘since often, even if all parties are in agreement as to
the underlying facts, the very question of negligence is itself a question for
jury determination'" (McCummings v New York City Tr. Auth., 81 NY2d 923,
926 quoting Ugarriza v Schmieder, 46 NY2d 471, 474). Here,
however, the Court finds that defendant has made a sufficient showing to warrant
granting judgment dismissing the claim (see, Windvand v 4612 13th Ave.
Realty Corp., 269 AD2d 527 [out of possession landowner should have been
granted summary judgment dismissing claim for injuries that occurred on the
The law is well settled that an out-of-possession owner is not liable for
injuries that occur on the premises unless the owner either retained control
over the premises or is contractually or statutorily obligated to repair or
maintain the premises (see, Putnam v Stout, 38 NY2d 607, 617;
Ritto v Goldberg, 27 NY2d 887, 889). In the instant case, the agreement
provided that Woods was responsible for "keeping the buildings, grounds and
equipment in good order at all times and returning the premises in the same
condition as it was in the beginning of the term" and that a camp inspection
would be conducted by defendant on September 30th of each year to determine the
damages which were to be repaired by Woods prior to the next operating season
(Agreement, ¶ 12). This limited right to reenter and inspect did not
establish that defendant had retained sufficient control to provide a basis for
imposing liability on defendant for injuries sustained in the camp (see,
Dalzell v McDonald's Corp., 220 AD2d 638 [defendant owner's reservation
of right to enter and inspect the premises is insufficient to impose liability
on defendant]). Additionally, all repairs had to be done by Woods, at their
expense (Blackwell v Jamal Holding Corp., 240 AD2d 527 [landlord's mere
reservation of right to enter a leased premises to make repairs is insufficient
to give rise to liability for a subsequently arising dangerous condition;
moreover parties had contracted that, except for exterior structural repairs,
tenant would make all repairs at its own expense]).
The agreement at page nine provided that the State was responsible for "major
maintenance of buildings, park water supply, sewage disposal plant, water and
sewage lines, electrical lines, removal of dead trees, and garbage removal."
This is consistent with the EBT testimony of the State's park manager, Thomas
Kelly, that the State merely owns the property and the buildings. Kelly also
had a maintenance staff of only 12 people assigned to cover 32 camps comprising
approximately 1200 buildings and their responsibilities were consistent with
that set forth in the agreement, i.e., major maintenance, such as work on the
water and sewer plants, repair and replacement of roofs, paving roads, and
plowing snow. The State's degree of maintenance does not evidence a sufficient
degree of control over the Woods premises to warrant imposing liability on the
State (see, Zaglas v Gironda, 266 AD2d 282 [although defendant
owner/lessor performed routine maintenance and was physically present on a
portion of the property, defendant did not retain sufficient degree of control
to warrant imposition of liability]).
Additionally, the fan was owned by Woods, as provided by page nine of the
agreement that all camp equipment be owned and maintained by Woods (see,
Butler v Passaro, 166 AD2d 548 [maintenance of the pool was the sole
responsibility of the tenants, therefore defendant owner could not be held
liable for structural defects in existence when tenant took possession of pool];
Gelardo v ASMA Realty Corp., 137 AD2d 787 [tenant was in exclusive
possession of that portion of the premises where accident occurred and tenant
was expressly covenanted to make all interior repairs]).
Further, consistent with the agreement, Kelly testified that Woods ran "the
day-to-day operation of the camp" (EBT, pp. 12-13), which included "plugging in
any fans" (EBT, pp. 13-14). Kelly was asked, "In regard to maintenance, if
there was ever a problem with a fan, would you or someone from your crew be
required to maintain these fans, or that's solely on [Woods]?" (EBT, p. 15).
Kelly responded, "The operating equipment for the day-to-day operating equipment
is the responsibility of the camp operator" (EBT, p. 15). According to Kelly,
the State did not require the operator of the camp to keep any records regarding
repairs to their equipment, nor was the State aware of whether such records were
kept by Woods (EBT, p. 16). Clearly, the State did not retain control of the
day-to-day operations of Woods (see, Baker v Getty Oil Co., 242
AD2d 644 [summary judgment in favor of lessor where it did not retain degree of
control over premises and day-to-day business operations so as to permit
imposition of liability against it]).
In sum, "a right of reentry for general inspection purposes, unrelated to any
affirmative obligation to maintain or repair, does not confer control over the
premises sufficient to impose liability for a subsequently arising dangerous
condition ***, particularly where the dangerous condition arises concerning a
piece of lawful equipment installed by the tenant ***, over which the landlord
has no control ***" [citations omitted] (Canela v Foodway Supermarket,
188 AD2d 416 [landlord granted summary judgment dismissing complaint of shopper
who was struck by food scale which fell from supermarket's ceiling suspension]).
Contrary to claimant's assertions, there are no issues of fact which would
preclude a granting of summary judgment dismissing the claim against defendant.
Rather, the facts clearly establish that the State did not have sufficient
dominion and control of the premises to warrant holding the State liable for the
alleged negligent maintenance of a fan owned and maintained by Woods.