Milewski v. Wash. Mut. Inc.

• Decision Date: 18 October 2011
• Parties: Annemarie MILEWSKI, etc., et al., appellants,v.WASHINGTON MUTUAL, INC., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 853

931 N.Y.S.2d 336

2011 N.Y. Slip Op. 07400

Annemarie MILEWSKI, etc., et al., appellants,

v.WASHINGTON MUTUAL, INC., et al., respondents, et al., defendants.

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

Oct. 18, 2011.

Levine & Slavit, New York, N.Y. (Leonard S. Slavit of counsel), for appellants.Cullen and Dykman LLP, Brooklyn, N.Y. (Wendy Tobias of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated July 27, 2010, as granted that branch of the motion of the defendants Washington Mutual, Inc., and Washington Mutual Bank which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On September 1, 2007, the plaintiff Annemarie Milewski (hereinafter the injured plaintiff) allegedly was injured when she tripped and fell as the result of an alleged defect in the parking lot of a bank branch of the defendants Washington Mutual, Inc., and Washington Mutual Bank (hereinafter together the Bank defendants). The alleged defect consisted, according to the plaintiffs, of a height differential of between one and two inches between the asphalt surface of the parking lot and the concrete framing of a metal grate that straddled the parking lot and the public sidewalk adjoining the lot. There was no height differential between the concrete framing and the sidewalk, but the asphalt surface of the parking lot sloped downward, creating the differential just inside the lot. The injured plaintiff and her husband, suing derivatively, commenced this action against the Bank defendants and their landlord to recover damages for their injuries. The Bank defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, contending that they owed no duty to the injured plaintiff inasmuch as their lease with the property owner placed the obligation for structural repairs on the landlord and, in any event, that the alleged defect was trivial and therefore not actionable. The Supreme Court granted that branch of the Bank defendants' motion on the ground that the Bank defendants did not lease the parking lot from the landlord and were not in possession or control of the parking lot, and that they therefore owed no duty to the injured plaintiff. In light of this holding, the court declined to consider the Bank defendants' argument that the defect was trivial. We affirm, but on the ground not addressed by the Supreme Court.

The possessor of real property has a duty under the common law to keep that property reasonably safe ( see Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Alnashmi v. Certified Analytical Group, Inc., ––– A.D.3d ––––, ––––, 929 N.Y.S.2d 620 [2d Dept. 2011]; cf. Walsh v. Super Value, Inc., 76 A.D.3d 371, 375, 904 N.Y.S.2d 121). While a landlord and tenant are free to agree with each other as to which party, as between them, will have the contractual obligation to make repairs, the tenant may not contract away a duty in tort that the law imposes on it with respect to third parties ( see Reimold v. Walden Terrace, Inc., 85 A.D.3d 1144, 926 N.Y.S.2d 153; Elbadawi v. Myrna & Mark Pizzeria, Inc., 70 A.D.3d 627, 627–628, 894 N.Y.S.2d 495; Skerritt v. Jarrett Constr. Co., 224 A.D.2d 299, 300, 638 N.Y.S.2d 448; McNelis v. Doubleday Sports, 191 A.D.2d 619, 620, 595 N.Y.S.2d 118; Chadis v. Grand Union Co., 158 A.D.2d 443, 444, 550 N.Y.S.2d 908; cf. Hoberman v. Kids R Us, 187 A.D.2d 187, 593 N.Y.S.2d 39). This duty does not depend on the classification of the defect as transient, structural, or nonstructural.

Here, contrary to the Supreme Court's determination, the Bank defendants leased not only the building, but the parking lot as well. Thus, the Bank defendants had possession and control over the parking lot, and they owed the injured plaintiff a duty to keep it reasonably safe ( see Alnashmi v. Certified Analytical Group, Inc., ––– A.D.3d ––––, ––––, 929 N.Y.S.2d 620 [2d Dept. 2011]; Chadis v. Grand Union Co., 158 A.D.2d at 444–445, 550 N.Y.S.2d 908).

In light of its holding that the Bank defendants did not owe the injured plaintiff a duty, the Supreme Court did not address the argument, now urged by the Bank defendants as an alternative ground for affirmance, that the alleged defect was trivial and therefore not actionable ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241; Jun Suk Seo v. Walsh, 82 A.D.3d 710, 918 N.Y.S.2d 146). Since that issue was argued before the Supreme Court, and has been briefed by the parties before us, we address it and find, as a matter of law, that the alleged defect was trivial and therefore not actionable.

Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489; Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 880 N.Y.S.2d 187; DeLaRosa v. City of New York, 61 A.D.3d 813, 877 N.Y.S.2d 439). Property owners (and tenants) may not be held liable for trivial defects, not...