Hakim v. 65 Eighth Avenue, LLC

• Decision Date: 19 July 2007
• Docket Number: 9939.
• Citation: 840 N.Y.S.2d 323,2007 NY Slip Op 06169,42 A.D.3d 374
• Parties: SIMONETTE HAKIM, Respondent, v. 65 EIGHTH AVENUE, LLC, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

42 A.D.3d 374

840 N.Y.S.2d 323

2007 NY Slip Op 06169

SIMONETTE HAKIM, Respondent, v. 65 EIGHTH AVENUE, LLC, et al., Appellants.

9939.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided July 19, 2007.

Order, Supreme Court, New York County (Debra A. James, J.), entered July 20, 2006, which, to the extent appealed from as limited by the briefs, denied defendants' cross motion for summary judgment, modified, on the law, the cross motion granted to the extent of dismissing the complaint as against defendant Wartski, and otherwise affirmed, without costs.

Plaintiff tenant was injured when the metal roll-up security gate outside her store became detached from the building. An out-of-possession landlord who reserves in the lease a right of reentry to inspect the premises and make necessary repairs is deemed to have constructive notice of any existing statutory violations (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566-567 [1987]). The damage to the security gate was allegedly caused by prolonged water exposure from a leaking roof. Defendants were responsible, under the lease, for repairs to the structure and the roof. Therefore, despite being an out-of-possession landlord, defendants cannot disclaim responsibility for the accident as a matter of law.

Defendants assert that sections 27-127 and 27-128 of the New York City Administrative Code are not proper statutory predicates to liability. Because this issue was raised for the first time in defendants' reply brief, it is not properly before the court (see Markovitz v Markovitz, 29 AD3d 460 [2006]), and, in any event, the argument is without merit. Should defendants be found negligent, they may not compel plaintiff to provide a defense and indemnification, as provided in the lease, as defendants cannot be indemnified for their own negligence (see General Obligations Law § 5-321; Delgiudice v Papanicolaou, 5 AD3d 236 [2004]).

The court granted plaintiff's motion to add "AJW Management" as a party defendant to the action. Plaintiff seeks to impose individual liability on Wartski, who was apparently the sole employee and shareholder of AJW Management, because he undertook the management of the premises. However, individual liability cannot be based upon an allegation that amounts to mere nonfeasance unless plaintiff establishes, as a matter of law, that the managing agent was in complete and exclusive control of the premises (Gardner v 1111 Corp., 286 App Div 110, 112 [1955], affd 1 NY2d 758 [1956]). Plaintiff's failure to do so warranted summary dismissal of the complaint as against Wartski in his individual capacity.

We have considered defendants' remaining arguments and find them to be without merit.

Concur — Tom, J.P., Saxe, Marlow and Malone, JJ.

McGuire, J., dissents in part in a memorandum as follows:

In my view, Supreme Court erred in denying that aspect of defendants' motion seeking summary judgment dismissing the complaint as against defendant 65 Eighth Avenue, LLC (the landlord). Accordingly, I respectfully dissent in part.

Plaintiff operated an antiques store out of premises she leased from the landlord. The ground-floor store had a roll-up security gate, apparently made of steel, that protected the storefront. Only plaintiff (and one of plaintiff's friends) had a key to the padlock on the gate; defendants did not possess a key. When it was not in use, the gate was rolled up into a shell that was affixed to the brick facade of the building approximately nine feet from the ground. To pull the gate down, plaintiff would use a long iron instrument with a hook at one end to pull the gate down until she could reach it with her hands; she would then manually pull the gate to the ground. Conversely, to roll the gate up into the shell, plaintiff would push the gate up from the ground until it coiled up into the shell. Early one afternoon, plaintiff, immediately after pushing the gate up into the shell, sustained personal injuries when the shell—with the gate rolled-up inside—fell from the facade and struck plaintiff. The set of parallel I-beams that served as the sidetracks for the gate also fell.

Plaintiff commenced this action against the landlord and one of its employees, claiming that they failed to maintain the demised premises in a reasonably safe condition. In their answer, defendants asserted counterclaims against plaintiff for indemnification and for breach of a provision in the lease requiring plaintiff to procure liability insurance naming defendants as additional insureds. Defendants moved for summary judgment (1) dismissing the complaint in its entirety, and (2) on the issue of liability on their counterclaims. Supreme Court denied the motion and this appeal ensued.

"A landlord is generally not liable for negligence with respect to the condition of property after the transfer of possession and control to a tenant unless the landlord: (1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision (Lane v Fisher Park Lane Co., 276 AD2d 136, 141 [2000], citing Johnson v Urena Serv. Ctr., 227 AD2d 325, 326 [1996], lv denied 88 NY2d 814 [1996]; see McDonald v Riverbay Corp., 308 AD2d 345 [2003]; ...