Guzman v. Haven Plaza Housing Development Fund Co., Inc.

• Decision Date: 05 May 1987
• Docket Number: DAITCH-SHOPWEL,T
• Citation: 509 N.E.2d 51,69 N.Y.2d 559,516 N.Y.S.2d 451
• Parties: , 509 N.E.2d 51 Carmen GUZMAN, Respondent, v. HAVEN PLAZA HOUSING DEVELOPMENT FUND COMPANY, INC., Defendant, and Village East Towers, Inc., Appellant-Respondent. VILLAGE EAST TOWERS, INC., Third-Party Plaintiff-Appellant-Respondent, v.hird-Party Defendant-Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 451

516 N.Y.S.2d 451

69 N.Y.2d 559, 509 N.E.2d 51

Carmen GUZMAN, Respondent, v. HAVEN PLAZA HOUSING DEVELOPMENT FUND COMPANY, INC.,

Defendant, and Village East Towers, Inc.,

Appellant-Respondent.

VILLAGE EAST TOWERS, INC., Third-Party Plaintiff-Appellant-Respondent, v. DAITCH-SHOPWELL, Third-Party Defendant-Respondent-Appellant.

Court of Appeals of New York.

May 5, 1987.

Marc J. Lust and Martin S. Rothman, New York City, for third-party defendant-respondent-appellant.

Anthony J. McNulty and Raymond J. MacDonnell, New York City, for appellant-respondent and third-party plaintiff-appellant-respondent.

Glenn S. Koopersmith, Great Neck, and Dominic F. Callo, New York City, for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

This appeal presents two questions: (1) whether the owner of a leased commercial building covered by the New York City Administrative Code which has no obligation for repairing or maintaining the premises but retains the right to reenter and inspect and to make needed repairs at tenant's expense may be held responsible for injuries due to a defect in the premises; and (2) if the owner may be held responsible, whether it is entitled to shift the entire responsibility to the tenant under principles of common-law indemnity or merely to contribution from the tenant for its share of the damages apportioned in accordance with their respective degrees of fault (CPLR art. 14; Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288).

Plaintiff fell and sustained injuries on August 29, 1979 while descending a flight of stairs on her way to the bathroom in the grocery store operated by third-party defendant Daitch-Shopwell (Daitch) where she worked as a meat packer. Daitch occupied the premises under a long-term lease from the owner, Village East. Plaintiff sued the owner-lessor, Village East, and recovered a verdict for her injuries which the jury apportioned on the basis of fault--60% against plaintiff and 40% against Village East. In Village East's third-party action against Daitch (its tenant and plaintiff's employer) the same jury apportioned Village East's 40% share of the verdict, 33 1/3% against Village East and 66 2/3% against Daitch. Village East's claim for 100% recovery against Daitch on the basis of common-law indemnity was denied. ¹ The Appellate Division affirmed, without opinion, and Village East and Daitch have appealed.

Both Village East and Daitch contend that plaintiff should not have recovered at all against Village East under established law pertaining to the liability of an owner out of possession. Village East argues alternatively that if the judgment against it is affirmed it should have a recovery over against Daitch in the full amount. For reasons to be discussed we reject these arguments and conclude that the order of the Appellate Division, 120 A.D.2d 998, 502 N.Y.S.2d 952, should be affirmed in all respects.

I

Plaintiff's theory of recovery against Village East is that the stairs were defective and constituted a hazardous condition because they were dimly lit and because the handrail was too close to the wall. After descending three or four steps, plaintiff said her hand got caught "and, like it threw me". She missed a step and "it was like dark in front of me, and I went down the stairs, all the way down."

The staircase had been built by Daitch about 10 years before the accident. Under the terms of its lease with Village East, Daitch was required to maintain the premises "and at its sole cost and expense make all repairs thereto as and when needed to preserve them in good working order and condition." For its part, Village East retained "a right to enter the demised premises at all times" for the purpose of inspection and the right to make repairs at tenant's expense "if the tenant fail[ed] to make" them. ² There was no evidence that Village East had inspected the premises or that it had actual knowledge of the claimed defect.

Because the property where the accident occurred is located in Manhattan, the Administrative Code of the City of New York ³ regulates the duties of the landlord and tenant. The Administrative Code charges the owner with responsibility "at all times for the safe maintenance of the building and its facilities" (Administrative Code § C26-105.2 [now § 27-128] ). The owner must maintain "[a]ll buildings and all parts thereof", including "[a]ll service equipment, means of egress, devices and safeguards that are required in the building by the provisions of this code or other applicable laws or regulations or that were required by law when the building was erected, altered or repaired" in good working order (Administrative Code § C26-105.1 [now § 27-127] ). With respect to interior staircases the Code requires that "[h]andrails shall provide a finger clearance of 1 1/2 in." (Administrative Code § C26-604.8 [f] [now § 27-375(f) ] ), and for lighting, the Code specified at the time of the mishap that "corridors and exits shall be provided with artificial lighting facilities" furnishing at least five foot candles of illumination (Administrative Code § C26-605.1[a] [now § 27-381(a); new section now requires only two foot candles of illumination] ).

II

Village East's liability to plaintiff, we conclude, is controlled by our decisions in Tkach v. Montefiore Hosp., 289 N.Y. 387, 46 N.E.2d 333, and Worth Distribs. v. Latham, 59 N.Y.2d 231, 464 N.Y.S.2d 435, 451 N.E.2d 193, dealing with the liability of an owner out of possession under Multiple Dwelling Law § 78. In Tkach v. Montefiore Hosp. (supra) a suit was brought against the owner out of possession and the lessee of an apartment building for injuries sustained when an apartment tenant was struck by falling plaster. The lease required the tenant to keep the property in repair but gave the landlord the right at any time to enter and examine the premises. Although the owner had not inspected the premises and had no actual knowledge of the defect, the court held that its retention of the right to enter and inspect was a sufficient basis to sustain liability and that the owner should be charged "with constructive notice of defects in all those parts of the building into which, by authority of the written lease, [it] may enter" (id., at 390, 46 N.E.2d 333).

In Worth Distribs. (supra) several actions for personal injuries, wrongful death and property damage arising out of the partial collapse of a hotel building were brought against the net lessee of a hotel and against the owner out of possession because of its statutory responsibility to keep the premises "in good repair" (Multiple Dwelling Law § 78). The net lease contained a provision permitting the owner to enter the premises for inspection and repairs. In holding that the owner should share liability for the damages with the net lessee we said: "Although an owner will not be held liable under section 78 where it has completely parted with possession and control of the building, the owners here reserved the right under the terms of the net lease to enter for inspection and repairs. This reservation constituted a sufficient retention of control to subject the owners to liability" (Worth Distribs. v. Latham, supra, at 238, 464 N.Y.S.2d 435, 451 N.E.2d 193).

We see no basis for distinguishing these cases. Like the owners of the buildings in Tkach and Worth Distribs. which were specifically bound by statute to keep the premises "in good repair" (Multiple Dwelling Law § 78), Village East, as owner, had obligations under the Administrative Code which, it has been held, has the force and effect of statute (see, n. 3, supra ). Village East had both a general responsibility for safe maintenance of the building and its facilities (Administrative Code §§ C26-105.1, C26-105.2 [now §§ 27-127, 27-128] ) and specific obligations pertaining to minimum handrail clearance (Administrative Code § C26-604.8 [now § 27-375] ) and minimum illumination (Administrative Code § C26-605.1[a] [now § 27-381(a) ] ). Also, as in Tkach and Worth Distribs., Village East, as owner-lessor, could enter the premises "at all times" to inspect. In addition, it had the right to make repairs "if the tenant fail[ed] to make" them and to change the "arrangement and/or location" of the stairs.

Although there is no evidence that Village East had actual notice of the claimed dangerous condition, its right to reenter the premises is sufficient to charge it with constructive notice (Tkach v. Montefiore Hosp., supra, at 390, 46 N.E.2d 333). Its failure to act to remedy the defect as it could have done under the lease is the basis for its liability under the various provisions of the New York City Administrative Code. ⁴

III

Village East's claim for a 100% recovery in its third-party action against Daitch proceeds on the theory of common-law indemnity. Village East contends that because Daitch constructed the stairs, assumed the duty for maintenance and repairs under the lease and, as tenant, had a total and unrestricted right of possession in the premises, the entire responsibility for the safe condition of the stairs was that of Daitch. Thus, its sole obligation arose from the nondelegable duty of an owner under the pertinent provisions of the New York City Administrative Code and this obligation has been assumed by Daitch under the lease. Village East maintains, therefore--relying principally on Rogers v. Dorchester Assocs., 32 N.Y.2d 553, 347 N.Y.S.2d 22, 300 N.E.2d 403--that it should have full recovery over.

As we have often noted since our adoption of the rule permitting equitable apportionment of damages among tort-feasors in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, supra, neither Dole nor its codification in CPLR article 14 altered the "basic and satisfactory principles of common-law indemnification" (Rogers v. Dorchester Assocs., supra, at 565-566, 347 N.Y.S.2d 22, 300 N.E.2d 403; see, e.g., Garrett v. Holiday Inns, 58 N.Y.2d...