Larosa v. Corner Locations, II, L.P., 8418

• Decision Date: 14 February 2019
• Docket Number: Index 158243/13,8418
• Citation: 93 N.Y.S.3d 38,169 A.D.3d 512
• Parties: Desiree LAROSA, et al., Plaintiffs–Respondents, v. CORNER LOCATIONS, II, L.P., et al., Defendants–Respondents, Moishe Gift Inc., Defendant–Appellant, Nylar Holding, LLC, Defendant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 512

93 N.Y.S.3d 38

Desiree LAROSA, et al., Plaintiffs–Respondents,

v. CORNER LOCATIONS, II, L.P., et al., Defendants–Respondents,Moishe Gift Inc., Defendant–Appellant,Nylar Holding, LLC, Defendant.

8418

Index 158243/13

Supreme Court, Appellate Division, First Department, New York.

ENTERED: FEBRUARY 14, 2019

The Chartwell Law Offices, LLP, New York (Andrew J. Furman of counsel), for appellant.

Zalman Schnurman & Miner, P.C., New York (Marc H. Miner of counsel), for Desiree LaRosa and William LaRosa, respondents.

Gambeski & Frum, Elmsford (Eugene Grimes of counsel), for Corner Locations II, L.P., and Halstead Management Company, LLC, respondents.

Friedman, J.P., Sweeny, Webber, Kahn, Kern, JJ.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered April 23, 2018, which, to the extent appealed from as limited by the briefs, denied the motion of defendant Moishe Gift Inc. (Moishe) for summary judgment dismissing the complaint and the cross claim for common-law indemnification against it, unanimously affirmed, without costs.

Plaintiff Desiree LaRosa was injured when she tripped and fell over the edge of a metal cellar door located on the public sidewalk in front of premises owned by defendant Corner Locations (Corner) and leased by Moishe. The court properly denied Moishe's motion for summary judgment because there are issues of fact as to whether it made special use of the cellar door in the sidewalk for its business and failed to maintain it in good repair (see Navaretto v. 995 Westchester Ave. LLC, 35 A.D.3d 267, 268, 826 N.Y.S.2d 64 [1st Dept. 2006] ). Although Corner, as the owner of the premises, had a nondelegable duty to maintain and repair the sidewalk abutting the premises (Administrative Code of the City of New York § 7–210), the property owner and tenant both may be held liable as joint tortfeasors for failure to fulfill their respective maintenance obligations (see Olivia v. Gouze, 285 App.Div. 762, 765–766, 140 N.Y.S.2d 438 [1st Dept. 1955], affd 1 N.Y.2d 811, 153 N.Y.S.2d 71, 135 N.E.2d 602 [1956] ).

Moishe also did not establish entitlement to dismissal of the cross claim based on the fact that Corner owes a nondelegable maintenance duty, since Moishe may be held liable to Corner for damages resulting from a violation of Moishe's obligations to repair and maintain the sidewalk and its special use of the sidewalk (see Wahl v. JCNYC, LLC, 133 A.D.3d 552, 20 N.Y.S.3d 65 [1st Dept. 2015] ).

Furthermore, under the facts and circumstances of this case...