On March 2, 2022, the Supreme Court State of New York, Appellate Division Second Department unanimously affirmed the trial court’s denial of a co-defendant’s summary judgment’s motion seeking dismissal of GRSLBG&B client’s cross claims for contribution, indemnification and contractual indemnification. The litigation arose when the plaintiff filed suit for personal injuries stemming from a trip and fall over an uneven sidewalk outside a commercial premises in Manhattan. GRSLBG&B served as appellate counsel for the defendant landlord.
In the trial court, defendant commercial tenant sought summary judgment dismissing the plaintiff’s complaint on the grounds that plaintiff lacked prima facie proof that it was negligent in the maintenance of the sidewalk. The commercial tenant further sought dismissal of the landlord’s cross claims arguing it lacked any obligation to the landlord to maintain the public sidewalk. The trial court granted the tenant’s motion to the extent that it did not breach any duty of care owed to the plaintiff and dismissed plaintiff’s claims against it. However, the trial court denied the tenant’s motion to dismiss landlord’s cross claims.
The tenant appealed the trial court’s denial of the motion to dismiss the crossclaims. The tenant argued that the lease agreement with the landlord, while obligating the tenant to maintain the sidewalk and keep it free from all debris, did not obligate the tenant for any structural repairs to the leased premises. Further the tenant argued that the trial court’s finding, that it was not negligent with respect to the plaintiff, facially established it’s right to dismissal of the cross claims.
Mr. Schlesinger and Mr. Gonzalez presented a two-pronged approach to the tenant’s claims. First, they argued that terms of the lease controlled the obligations between the landlord and the tenant, thus, the determination that the tenant was not in breach of a duty to the plaintiff fails to establish that the tenant didn’t breach its contractual obligations to the landlord. To that end, it was argued that the tenant could be liable to the landlord for any damages the landlord incurred for any failure of the tenant to maintain the sidewalk. Second, Mr. Schlesinger and Mr. Gonzalez argued that while the lease required the landlord to perform all structural repairs to the leased premises, the sidewalk was not a structure of the demised premises, because the landlord did not own the sidewalk. Thus, tenant, not the landlord, possessed a duty under the lease to repair the uneven sidewalk.
The Appellate Division agreed with the landlord and found that the tenant failed to present prima facie proof that it lacked any contractual obligation to maintain the sidewalk, and that plaintiff’s accident did not trigger the indemnity provisions contained in the lease. Similarly, the Court found that the tenant also failed to establish that it was free from negligence or that the landlord entirely displaced the tenant’s duty to maintain the sidewalk. As such, the Court ruled that the trial court’s denial of the tenant summary judgment motion was proper. The Appellate Court’s ruling preserved the landlord’s ability to pursue indemnity and risk transfer against the tenant.
You can directly reach Eric or Vincent below:
Eric S. Schlesinger Eschlesinger@grsl.com
Vincent L. Gonzalez Vgonzalez@grsl.com
