MERINO v. Prime Building Management Services Inc., Defendant. (2023)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered on August 9, 2022, which denied defendants Larstrand Corporation and 723 Associates L.L.C.’s (together Larstrand defendants) motion for summary judgment dismissing the complaint and all cross-claims against them and for summary judgment on their cross-claims for contractual indemnification and insurance coverage against defendants CP Burn, LLC and CP–3 79th, LLC (together CP Burn), and granted CP Burn's motion for summary judgment dismissing the Larstrand defendants’ cross-claims for contractual indemnification, unanimously affirmed, with costs.

Plaintiff slipped and fell on an interior staircase of a building owned and managed by the Larstrand defendants, while descending the stairs from the second floor to the first floor after finishing an exercise class at tenant CP Burn's studio.  Plaintiff testified that when she arrived at the building at approximately 6:30 p.m., there was accumulated rainwater on the stairs.  As plaintiff left at approximately 7:30 p.m., there was still accumulated rainwater on the stairs.  Testimony from defendants established that the stairs were last cleaned at around 12:36 p.m. and that, in any event, the maintenance schedule did not go past 3:00 p.m. on any given day.

The court correctly denied the Larstrand defendants’ motion for summary judgment.  The evidence raised triable issues as to whether the wet condition existed for a sufficient length of time for the Larstrand defendants to have a reasonable opportunity to discover it and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]).

The Larstrand defendants’ cross-claims for contractual indemnification against CP Burn were properly dismissed because the lease did not require indemnification for claims arising in a common area controlled by the Larstrand defendants and shared with other tenants for ingress and egress (see 625 Ground Lessor LLC v. Continental Cas. Co., 131 A.D.3d 898, 899, 17 N.Y.S.3d 26 [1st Dept. 2015], lv denied 26 N.Y.3d 916, 2016 WL 115874 [2016]).