City of New York v. Kalikow Realty Co.

• Citation: 529 N.Y.S.2d 62,71 N.Y.2d 957,524 N.E.2d 416
• Parties: , 524 N.E.2d 416 CITY OF NEW YORK, Respondent, v. KALIKOW REALTY COMPANY, Appellant.
• Decision Date: 28 April 1988
• Court: New York Court of Appeals

Page 62

529 N.Y.S.2d 62

71 N.Y.2d 957, 524 N.E.2d 416

CITY OF NEW YORK, Respondent, v. KALIKOW REALTY COMPANY, Appellant.

Court of Appeals of New York.

April 28, 1988.

Martin M. McGlynn, New York City, for appellant.

Peter L. Zimroth, Corp. Counsel (Margaret G. King, Edward F.X. Hart and Lucy A. Cardwell, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division 132 A.D.2d 481, 518 N.Y.S.2d 375, should be affirmed, with costs.

On June 27, 1972, the City Department of Highways placed a violation on defendant's premises, stating that the abutting sidewalk was in need of repair. (New York City Charter former § 230 provided that if a property owner failed to cure a violation the City could then make the required repairs at the owner's expense.) Defendant responded to the City's notice by letter dated July 10, 1972, as follows:

"We have erected a fence and repaired the sidewalk so as to be in a safe condition. We intend to start construction at the said site within the next year and shall until then and during the entire course of construction maintain the sidewalk in a safe condition.

"Upon completion of our building the sidewalk will be completely reconstructed. We request the City of New York not to proceed with any work as outlined on the violation since such work would of necessity be destroyed at the start of construction."

Approximately two years later, still during defendant's construction, a pedestrian was injured when he fell on a broken sidewalk. In the subsequent personal injury action against the City and defendant's affiliate (the construction contractor), the City alone was held liable for breach of its statutory duty to maintain the sidewalks, and it paid the full amount of the judgment to plaintiff. The City thereafter brought this action against defendant for indemnification. Special Term granted the City's motion for summary judgment and a divided Appellate Division affirmed. We agree with the Appellate Division majority that, in the particular circumstances before us, the City should be permitted to recover from defendant the full amount of the judgment it paid to plaintiff.

It bears emphasis that the issue before us is limited to who, as between the City and this property owner, should ultimately pay plaintiff's judgment. This case in no way affects either the injured plaintiff, who has already been fully compensat by the City, or the City's nondelegable duty to maintain its sidewalks, a duty the City concedes. Nor does our holding countenance the City's breach, as found after trial, of its obligation to maintain its streets in safe condition, or inject any disincentive to performance of that duty. We consider only the narrow circumstances of this property owner's explicit resistance to the City's initiation of the repair process, coupled with an assumption of that responsibility and a request for municipal forbearance.

Defendant's insistence now that the City must share payment of the judgment, instead of indemnifying the City in the whole amount, requires us to ignore defendant's letter, written in response to the City's initiation of action to repair the street by service of a violation notice under New York City Charter § 230, unequivocally assuming responsibility to repair and maintain the sidewalk in a safe condition during its construction project. Closely akin to the present situation is Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403, in which we held that a building owner was entitled to indemnification from a company that undertook to inspect, maintain and repair elevator equipment that malfunctioned and injured plaintiff. The building owner's nondelegable duty to maintain the premises in a safe condition--presenting the same policy considerations as the City's nondelegable duty to maintain the sidewalks--was not a bar to indemnification by the party who had explicitly assumed that duty ( id., at 563, 347 N.Y.S.2d 22, 300 N.E.2d 403).

This case is materially different from either D'Ambrosio v. City of New York, 55 N.Y.2d 454, 460, 450 N.Y.S.2d 149, 435 N.E.2d 666 or Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51. In neither case did one party actually begin action to make certain stated repairs (as evidenced by the City's violation notice) and in response receive the explicit undertaking of the landowner that it would do so. By denying a right of indemnification in the circumstances presented, the dissent would extend the law beyond any previous decision of this court, and would effectively preclude implied indemnification whenever a nondelegable duty is involved--the very situation when implied indemnification is likely most necessary. There being no legal or policy impediment to an affirmance here, we conclude that the law sensibly should give effect to the particular dealings between the City and this landowner.

Finally, on this record we must reject defendant's assertion that the City is barred from recovery because it failed to establish an adequate defense of the personal injury action. Defendant fails to identify any error in the findings made by Special Term, upon a review of the trial transcript, that an adequate defense was presented.

TITONE, Judge (dissenting).

The majority concludes that the City may invoke the common-law doctrine of indemnification to shift the entire responsibility for the pedestrian's injuries to defendant solely because of defendant's undertaking to maintain the sidewalk adjacent to its lot in safe condition. Further, in its effort to reconcile this ruling with the court's recent decision in Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 516 N.Y.S.2d 451, 509 N.E.2d 51, which involved a similar undertaking, the majority has seized upon the distinction it perceives in defendant's inducing the City to refrain from making stated repairs by such an explicit undertaking (majority mem, at 959, p. 63 of 529 N.Y.S.2d, p. 417 of 524 N.E.2d).

In my view this analysis is unsound, because it rewards the City for abdicating its municipal responsibilities on the strength of a bare promise by a private citizen to act in the City's stead. Since recent decisions of this court, the governing statute, and public policy preclude such a result, I respectfully dissent and cast my vote for reversal.

Initially, there can be little dispute about the basic difference between common-law indemnification and the more recently recognized right of contribution, which was codified in CPLR article 14. As we have repeatedly observed, "where one joint tort-feasor 'is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent' " ( Guzman v. Haven Plaza Hous. Dev. Fund Co., supra, at 567-568, 516 N.Y.S.2d 451, 509 N.E.2d 51, quoting D'Ambrosio v. City of New York, 55 N.Y.2d 454, 462, 450 N.Y.S.2d 149, 435 N.E.2d 366; see, e.g., Glaser v. Fortunoff of Westbury, 71 N.Y.2d 643, 529 N.Y.S.2d 59, 524 N.E.2d 413; Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 556, 347 N.Y.S.2d 22, 300 N.E.2d 403).

In Rogers v. Dorchester Assocs. (supra), on which the majority relies, we concluded that a property owner could recover against an independent contractor who promised to maintain the owner's elevator on a theory of implied indemnification. We stated that contribution "applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only...