Matter of Bento v. Dormitory Auth. of the State of N.Y.

Matter of Bento v Dormitory Auth. of the State of N.Y. (2020 NY Slip Op 06698)

Matter of Bento v Dormitory Auth. of the State of N.Y.

2020 NY Slip Op 06698

Decided on November 17, 2020

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 17, 2020
Before: Manzanet-Daniels, J.P., Singh, Scarpulla, Shulman, JJ.

Index No. 154646/19 Appeal No. 12451N Case No. 2020-01799

[*1]In the Matter of Anthony Bento, Petitioner-Respondent,

v

Dormitory Authority of the State of New York, Respondent-Appellant.

Newman Myers Kreines Harris, P.C., New York (Charles D. Cole, Jr. of counsel), for appellant.

Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville (Michael E. Bergman of counsel), for respondent.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered October 28, 2019, which granted petitioner's motion to serve a late notice of claim nunc pro tunc, unanimously reversed, on the law, without costs, the motion denied and the petition dismissed. The Clerk is directed to enter judgment accordingly.

The court improvidently exercised its discretion in granting petitioner's motion to file a late notice of claim (Matter of Hess v West Seneca Cent. School Dist., 15 NY3d 813, 814 [2010]). It is well settled that as an out-of-possession title owner, respondent Dormitory Authority does not bear liability for personal injuries suffered at CUNY buildings (Dempaire v City of New York, 61 AD3d 816 [2d Dept 2009]; Shrenkel v New York State Dormitory Auth., 266 AD2d 369, 370 [2d Dept 1999]). Similarly, because DASNY surrenders all control and possession to CUNY once a building is completed, it is not subjected to non-delegable duties that owners may have, like providing safe working conditions pursuant to Labor Law 240(1) and 241(6) (see Gomez v Walton Realty Assoc., 258 AD2d 307, 308 [1st Dept 1999].

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 17, 2020