GARCIA v. LLC 620 LLC (2026)

Order, Supreme Court, Bronx County (Shawn T. Kelly, J.), entered October 6, 2025, which, to the extent appealed from as limited by the briefs, denied the motion of third-party defendant 620 Truxton Street LLC for summary judgment dismissing the third-party complaint as against it, unanimously affirmed, without costs.

Supreme Court correctly found that 620 Truxton was not entitled to summary judgment dismissing the claims of defendant/third-party plaintiff Baco Enterprises, Inc., for common-law indemnification and contribution because 620 Truxton failed to establish as a matter of law that it cannot be held liable as an out-of-possession landlord (see Thomas v. Triboro Maintenance Corp., 223 AD3d 582, 583 [1st Dept 2024] ).  The language of the lease agreement between 620 Truxton and third-party defendant Zevel Transfer LLC raises a question of fact as to whether 620 Truxton assumed certain repair and maintenance obligations for the subject premises, including the junkyard where plaintiff's accident occurred (see id. at 582–583;  cf.  Massaro v. Manfredi Auto Cent., LLC, 248 AD3d 514, 514–515 [1st Dept 2026] ).

To the extent 620 Truxton briefly asserted for the first time in its reply papers that, even if it owed plaintiff a duty of care as landowner, there was no evidence to establish that any alleged breach was a proximate cause of plaintiff's injuries, this issue was not adequately presented to the motion court and is barred from consideration on appeal (see Price v. Turner Constr.  Co., 190 AD3d 435, 436 [1st Dept 2021] ).