Defendant moves for summary judgment dismissing the claim pursuant to CPLR
3212. Claimant allegedly sustained injuries when she tripped on cables and fell
while attending a performance of the New York City Ballet held in the
amphitheater at the Saratoga Performing Arts Center ("SPAC") on July 22, 2006.
As described at her examination before trial, the claimant tripped on a large
black cable on the floor of the auditorium while walking to her assigned seat.
The cable appeared to run from the stage area which was in front of the
claimant's seat to a "sound stage" situated behind it (defendant's Exhibit D, p.
26). According to Richard D. Geary, Chief Financial Officer and Chief Operating
Officer of SPAC, the cables were installed by a company identified as Omnitech
pursuant to a contract with SPAC and ran through the center section of seats
from the stage at the front of the auditorium to the "mix position" in the rear
of the auditorium where sound mixing equipment was located (defendant's Exhibit
F, pp. 16-18). It is undisputed that the defendant had no involvement in the
placement of the cables upon which the claimant tripped and fell (defendant's
Exhibit F, p. 23; defendant's Exhibit G, p. 28).
It is also undisputed that the amphitheater is owned by the State of New York
and operated by SPAC pursuant to a license agreement with the Office of Parks
and Recreation (hereinafter "defendant" or "PARKS") (defendant's Exhibit G, p.
7-9; defendant's Exhibit F, p. 6). As part of discussions begun in early 2006
regarding certain renovation work to be performed at the SPAC amphitheater, SPAC
representatives suggested that a trench designed to contain cabling be installed
in the amphitheater's cement floor "[t]o avoid an obvious condition with cables
running on concrete"
(defendant's Exhibit F, p. 14, 18-19). The work, including installation of the
trenches recommended by SPAC, was performed in the winter of 2006/2007 pursuant
to a contract between the defendant and an outside contractor (defendant's
Exhibit G, p. 13). Guidelines for the timing of the work were provided by
SPAC, which required that a portion of the work commence after the completion of
the performance season (defendant's Exhibit F, p. 12).
The license agreement between PARKS and SPAC granted to SPAC "an exclusive
license to use, occupy, possess and to restrict entrance to, all that certain
piece and parcel of land occupied by and surrounding the amphitheater erected by
SPAC situated at the Saratoga Springs Reservation, in the City of Saratoga
Springs, Saratoga County and State of New York . . . including any structures
now or hereafter erected thereon incidental to the operation of said
amphitheater . . ." (defendant's Exhibit H, License Agreement entered into April
25, 1977). Pursuant to this agreement, PARKS agreed to "[r]epair, rehabilitate,
replace in kind and, when necessary or appropriate in the opinion of PARKS, add
to or improve all structures now or hereafter built upon the licensed premises,
. . . so that these properties may remain in as good condition as when the
construction thereof was accomplished, reasonable wear and tear excepted . . ."
(defendant's Exhibit H, 1977 License Agreement, pp. 4-5). PARKS further agreed
that it would not "without the prior consent of SPAC alter, add to, subtract
from or replace (otherwise than in kind as heretofore set forth) any of the
aforesaid structures contained within the licensed premises" (defendant's
Exhibit H, 1977 License Agreement, p. 5). The license agreement also permitted
SPAC at its own expense to "alter or add to the licensed area" with the prior
approval of PARKS (defendant's Exhibit H, 1977 License Agreement, p. 6, ¶
2 [c]) and permitted PARKS "full access to the premises for the purposes of
inspection and control" (defendant's Exhibit H, 1977 License Agreement, p. 16,
An amendment to the license
agreement made on December 15, 1989, among other things, provided that SPAC
"shall be responsible for seasonal and hourly personnel in conjunction with all
its operations . . ." (defendant's Exhibit H, License Revision dated December
15, 1989, ¶ 1 [d]). The agreement also made SPAC responsible for costs
related to "[m]aterials and supplies required for PARKS' repair, replacement and
maintenance of licensed premises. . . " (defendant's Exhibit H, License Revision
dated December 15, 1989, ¶ 1 [h] [ii]).
In support of its motion for summary judgment, the defendant argues that it did
not create the allegedly defective condition involving the cable and was
without the power to correct it. It also argues that it had no duty to make
capital improvements to the amphitheater which it argues was in a reasonably
It is well established that "'summary 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, Inc. v Ceppos, 46 NY2d 223, 231 [citation
omitted]). "The proponent of a summary judgment motion must make a prima
facie showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to eliminate any material issues of fact from the case"
(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ). Once
the movant has made this showing, the burden shifts to the party opposing the
motion "to produce evidentiary proof in admissible form sufficient to establish
the existence of material issues of fact which require a trial of the action"
(Alvarez v Prospect Hospital, 68 NY2d 320, 324 , citing
Zuckerman v City of New York, 49 NY2d 557, 562 ). Here, claimant
failed to overcome defendant's prima facie showing of its entitlement to summary
judgment dismissing the claim.
The law is well settled that "[a]n out-of-possession landlord who retains the
right to reenter the leased premises for purposes of inspection or structural
repair may be held liable for injuries to third parties only where the injuries
arise from structural defects or a specific statutory violation" (Sauer v
Mannino, 309 AD2d 1053, 1054 ; cf. Katz v Queens Theater in
the Park, 27 AD3d 623 ; Gibbs v Port Auth. of N.Y., 17 AD3d 252
 ). An out-of- possession landlord bears no liability, however, for
unsafe conditions brought about through the act of its tenant regardless of
whether it has notice of the allegedly defective condition (Davison v
Wiggand, 259 AD2d 799, 802 , lv denied 94 NY2d 751 ;
see also Brockington v Brookfield Dev. Corp., 20 AD3d 382 ).
For example, in Davison v Wiggand, supra, the plaintiff sustained
injuries when he struck his head on pipes while performing work on a
15-foot-high storage loft. The Appellate Division, Third Department, held that
summary judgment dismissing the complaint against an out-of-possession landlord
was appropriate in that although the landlord was contractually obligated to
make structural repairs to the premises, including the pipes, it was the
tenant's construction of the loft which created the dangerous condition giving
rise to the plaintiff's injuries. The pipes themselves functioned properly and
required no repairs. According to the Court "[u]nder the circumstances, we
are unpersuaded . . . that defendant's 'control' of the pipes or its notice of
the dangerous condition (even if established) imposed a duty upon defendant to
make structural modifications necessary to remedy the condition" (Id. at
Here, SPAC had an exclusive license for the use and operation of the premises.
SPAC entered into a contract with Omnitech for the installation of the cables,
an act for which its license agreement with the defendant required no prior
approval. It is undisputed that the defendant took no part in the placement of
the cables upon which the claimant tripped.
Like the facts in Davison v Wiggand, supra, while the claimant
argues the defendant should have installed a trench to house the cables prior to
the date of the claimant's accident " there was no defective condition
requiring repair and defendant took no action such as would have provided a
separate basis for liability" (Davison v Wiggand, supra at 802).
The claimant was not injured as a result of a defect in the amphitheater floor.
Rather, the claimant allegedly tripped on cables installed by a third party
pursuant to a contract with SPAC. Notwithstanding the claimant's contrary
argument, under these circumstances the mere fact that the defendant admittedly
knew that SPAC placed cables on the floor (defendant's Exhibit G, pp. 25-26,
34-35) is an insufficient basis upon which to predicate liability. The license
agreements make clear that defendant lacked the authority to control the use
and operation of the amphitheater or otherwise make structural repairs without
the approval of SPAC. Even once approval for repairs was obtained, SPAC
dictated the timing of the work, requiring that some of it be performed at the
conclusion of the performance season. The creation of the trenches in the
cement floor of the amphitheater obviously could not be performed during the
performance season and was therefore completed in the winter of 2006/2007.
Thus, defendant did not have the requisite degree of control necessary to impose
liability for the failure to correct the allegedly unsafe condition of the
cables on the premises (cf. Deerr'Matos v Ulysses Upp, LLC, 52
AD3d 645 ; Stickles v Fuller, 9 AD3d 599 ; Henness v
Lusins, 229 AD2d 873 ; Downey v R.W. Garraghan, Inc., 198 AD2d
Accordingly, the defendant's motion for summary judgment is granted and the
claim is dismissed.