Turner v. Federated Department Stores, Inc.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Garry, J.), dated April 12, 1990, which granted the defendant Orbach’s motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiff, a New York City police officer, responded to a burglary call at an Abraham & Strauss store (hereinafter A&S) located in Queens County where he allegedly sustained personal injuries when he fell through an acoustical tile ceiling. The A&S store is part of a shopping complex which also houses an Orbach store, a common mall area, and a parking garage.

The plaintiff contends that the defendant Orbach, Inc. retained sufficient control of the premises to be held liable for his injuries. Under the facts of this case, we find no basis for imposing liability on Orbach, Inc., which did not occupy, own, or control the property where the accident occurred (Balsam v Delma Eng’g Corp., 139 AD2d 292). Consequently, the court correctly granted summary judgment dismissing the complaint as against Orbach, Inc. Eiber, J. P., O’Brien, Copertino and Pizzuto, JJ., concur.