Vasquez v. RVA Garage, Inc.

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated March 15, 1996, which granted the motion of the defendant RVA Garage, Inc., for summary judgment dismissing the complaint insofar as asserted against the defendant RVA Garage, Inc.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant RVA Garage, Inc.

The plaintiff was injured on July 4, 1994, when unknown persons congregating on property owned by the defendant RVA Garage, Inc. (hereinafter the owner), exploded a "cherry bomb”. In support of its motion for summary judgment, Robert Compagna, the president of the owner, testified at an examination before trial that the premises in issue were occupied by VRC Service Station, Inc. (hereinafter VRC) which in turn leased a portion of the property to the defendant Junction Oil Corp. (hereinafter Junction). Although the lease from VRC to Junction was produced, no lease from the owner to VRC was produced, nor is it clear from the record whether there was a written lease from the owner to VRC. Further, the president of *408VRC was also the president of the owner. He acknowledged that for 15 years, he operated a business on the site in the name of VRC. Until April 1991, when he leased a portion of the premises to the predecessor in interest of Junction, VRC both sold gasoline and operated an automobile repair service on the site.

In opposition, the plaintiff submitted an affidavit from a neighborhood resident that persons had congregated on the property and exploded fireworks every July 4th for over 20 years.

It is well settled that a proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law (see, Olan v Ursino, 235 AD2d 406). Here, the owner failed to establish that it relinquished control over the premises (see, Putnam v Stout, 38 NY2d 607, 613; Suarez v Skateland Presents Laces, 187 AD2d 500). On this question, the terms of VRC’s lease to Junction are irrelevant. There is no evidence in the record as to the terms of any agreement whereby VRC operated a business on land owned by the owner. Accordingly, it would be "utter speculation” to conclude that "the premises were leased [to VRC] without retention of any possession or control” (Estes v New York State Saddle Horse Assn., 188 AD2d 857, 859). On this issue, the owner failed to make a prima facie showing of its entitlement to judgment as a matter of law (see, Del Giacco v Noteworthy Co., 175 AD2d 516, 517). Campagna’s conclusory statements that the owner did not, in fact, exercise control over the premises did not, as our dissenting colleague contends, establish that "it had no duty” to exercise control (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 569).

Moreover, the evidence submitted by the plaintiff in opposition established that there are issues of fact as to whether the owner breached its duty of care in failing to take steps to prevent the detonation of fireworks on its property (see, Murphy v Turian House, 232 AD2d 535; Guarcello v Rouse SI Shopping Ctr., 204 AD2d 685). Campagna had ample opportunity to learn of the dangerous and illegal practice in his 15 years of operating a business on the site which, until 1991, also included operating the gasoline station. Although Campagna claimed the repair shop was closed on weekends and holidays, there.is no evidence in the record that the same was true for the gasoline station. As president of the owner corporation, he could not close his eyes to what he learned while conducting business on the premises in his capacity as president of VRC. The plaintiff submitted evidence of a history of persons exploding *409fireworks on the site every July 4th for over 20 years, from which a jury could conclude that a repetition of that conduct on July 4, 1994, was a significant foreseeable possibility.

Accordingly, the motion for summary judgment should have been denied. Bracken, J. P., O’Brien and Goldstein, JJ., concur.