Smith v. Andre , 843 N.Y.S.2d 209 ( 2007 )

Mazzarelli, J.P., and Andrias, J., dissent

in a memorandum by Andrias, J., as follows: Because it cannot be determined, as a matter of law, what interest defendants-appellants had in the subject premises at the time of plaintiffs accident, I would affirm the denial of defendants-appellants’ motion for summary judgment dismissing the complaint as against them.

Although a recorded deed presumptively establishes appellants’ transfer of the premises to respondents about three, months before the accident (see Southern Assoc, v United Brands Co., 67 AD2d 199, 202 [1979]), an issue of fact as to appellants’ retention of control (see Jackson v Board of Educ. of City of N.Y., 30 AD3d 57, 60 [2006] [liability for dangerous condition on property may only be predicated on occupancy, ownership, control or special use]) is raised by respondents’ claim that appellants had agreed to maintain the insurance and mortgage on the premises until respondents obtained a mortgage in their own names. The existence of this issue is further shown by plaintiffs affidavit that the day after the accident she contacted one of defendants-respondents who told her that he had insurance that would cover her injuries and would provide her with the necessary information. Thus, although defendants-appellants may ultimately be entitled to summary judgment, such relief is premature at this point where there has been no discovery regarding the insurance and mortgage in effect at the time of the accident.