Parisi v. Argento

OPINION OF THE COURT

Memorandum.

Generally, an out-of-possession owner or lessor of a premises is not liable for injuries that occur on the premises unless the owner or lessor has either retained control over the subject *14premises or is contractually obligated to repair any unsafe conditions thereon (Suarez v Skateland Presents Laces, 187 AD2d 500). Absent an agreement to the contrary, a lessor surrenders both possession and control to the lessee (Strunk v Zoltanski, 96 AD2d 1074). In the case at bar, plaintiff is seeking to hold the defendant owner liable for the injuries he sustained when he attended a Fourth of July party at the subject premises held by the occupants of the house (Daria Cino and Perry Cino) who are nonparties to the action. Plaintiff was struck by fireworks which were set off on the premises by Perry Cino.

While Daria and Perry Cino were occupying the premises without a written lease, it is uncontroverted that they made rental payments to defendant. Accordingly, they were tenants and not mere caretakers as plaintiff contends. Under the circumstances, defendant cannot be held liable to plaintiff for the injuries he sustained on the premises since defendant relinquished exclusive possession and control of the premises. Even assuming, arguendo, that defendant still retained possession and control, defendant would not be liable as the injuries were the result of an unforeseeable dangerous act. Plaintiff failed to present any evidence that the defendant had either actual or constructive notice of such dangerous act (see, Ellis v Mildred Elley School, 245 AD2d 994). Consequently, no material issues of fact exist and defendant’s motion for summary judgment should have been granted.

Patterson, J. P., Golia and Rios, JJ., concur.