Derrick Exum, Appellant, v. Young C. Kim et al., Respondents

Derrick Exum, Appellant, v Young C. Kim et al., Respondents. [633 NYS2d 408] [MAJORITY] —In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Golden, J.), dated July 12, 1994, as granted the motion of the defendants Young C. Kim and Eunshin Kim for summary judgment dismissing the complaint as against them. Ordered that the order is affirmed insofar as appealed from, with costs. The plaintiff was allegedly injured when he was a patron at a restaurant. The defendants Young C. Kim and Eunshin Kim are the out-of-possession landlords. The deposition testimony of the tenant and the affidavit of Young C. Kim indicated that the Kims had no involvement in the maintenance of the premises once the tenant took occupancy (see, Marchese v Fresh Meadows Assocs., 207 AD2d 871). The plaintiff also failed to submit any credible evidence of the duration of the alleged defect. Thus, the plaintiff failed to meet his burden of raising a triable issue of fact as to whether the Kims had actual or constructive notice of the defect or whether they retained sufficient control over the premises that liability could be imposed upon them (see, Marchese v Fresh Meadows Assocs., supra). Therefore, the defendants Young C. Kim and Eunshin Kim established their entitlement to summary judgment. Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.