Opinion
Submitted September 6, 2000
October 10, 2000.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered November 1, 1999, which denied its motion for summary judgment dismissing the complaint.
Baxter Smith, P.C., Jericho, N.Y. (David F. Kluepfel of counsel), for appellant.
Donald W. Leo, Coram, N.Y. (John F. Clennan of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
As the managing and operating agent for the owner of the parking garage in which the plaintiff Sally A. Ingordo was injured, the defendant may be liable for nonfeasance only if it was in complete and exclusive control of the management of the garage (see, Lennon v. Oakhurst Gardens Corp., 229 A.D.2d 897, 898; Ioannidou v. Kingswood Mgt. Corp., 203 A.D.2d 248; Keo v. Kimball Brooklands Corp., 189 A.D.2d 679). Since the evidence submitted on the motion established that the defendant did not have exclusive control, the Supreme Court erred in denying its motion for summary judgment dismissing the complaint (see, Ioannidou v. Kingswood Mgt. Corp., supra). Contrary to the plaintiffs' contention, the defendant is entitled to summary judgment on the unpleaded affirmative defense of agency as the plaintiffs are not surprised or prejudiced thereby (see, Rogoff v. San Juan Racing Assn., 54 N.Y.2d 883; Rosario v. City of New York, 261 A.D.2d 380).
The plaintiffs' remaining contentions are without merit.