CUTTER v. LLC (2026)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered October 6, 2025, which denied defendant Nevins Realty LLC's motion for summary judgment dismissing the complaint as against it and on its cross-claim for contractual indemnification against defendant Bayard's Ale House, unanimously affirmed, without costs.

Plaintiff was injured while patronizing Bayard's Ale House in Greenwich Village when he fell down stairs leading to the basement.  The stairs were accessed by opening doors that, when closed, were flush with the floor.  When opened, the two doors stood straight up and narrowed the space for ingress and egress.  Plaintiff's expert opined that patrons had an approximately 131/414 inch space between the wall and the open doors to pass by.  Minutes before plaintiff's injury a Bayard's employee left one of the doors open when he went down to the basement to change his clothes at the end of his shift.

Bayard's leased the premises from defendant Nevins Realty, an out-of-possession landlord.  While an out-of-possession landlord is generally not liable for negligence with respect to the condition of the property after transfer of possession and control to a tenant, one exception to the general rule arises when the landlord has a right of reentry under the lease to make needed repairs and liability is based upon the breach of a specific statutory design safety provision (see Batchilly v. 610 8th Ave. Corp., 252 A.D.3d 401, 262 N.Y.S.3d 395 [1st Dept. 2026] ).  The parties' lease gives Nevins Realty the requisite right of reentry to make “repairs, replacements and improvements ․ for the purpose of complying with laws, regulations and other directions of governmental authorities.”

Nevins Realty failed to establish prima facie entitlement to summary judgment dismissing the complaint as against it, as it failed to address the specific statutes and safety codes that plaintiff cited in his supplemental bill of particulars or to explain why any violations of those statutes and codes were not a proximate cause of plaintiff's fall.  Rather, Nevins Realty asserted that plaintiff's fall was not caused by a significant structural or design defect, but solely by the actions of Bayard's employee in failing to close the door to its flush position as he made his way down the stairs to the basement (see Ebrahim v. Twin Dev., LLC, 237 A.D.3d 610, 610, 233 N.Y.S.3d 23 [1st Dept. 2025], lv denied 44 N.Y.3d 911, 2026 WL 439649 [2026] ).  Nevins Realty is not entitled to summary judgment on that basis, as there can be more than one proximate cause of an incident (see Lopez v. 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 A.D.2d 230, 232, 750 N.Y.S.2d 44 [1st Dept. 2002] ).  In any event, in opposition to Nevins Realty's motion, plaintiff raised issues of fact through his expert's affidavit identifying structural or design defects and explaining why they violated the New York City building code (see e.g. Rodriguez v. Leggett Holdings, LLC, 96 A.D.3d 555, 555–556, 947 N.Y.S.2d 429 [1st Dept. 2012];  Pimentel v. Marx Realty & Improvement Co., Inc., 55 A.D.3d 480, 480, 867 N.Y.S.2d 384 [1st Dept. 2008];  Lopez, 299 A.D.2d at 232, 750 N.Y.S.2d 44).

Supreme Court also properly denied summary judgment to Nevins Realty on its contractual indemnification cross-claim against Bayard's, even though the request for this relief was unopposed.  As the movant, Nevins Realty bore the burden of establishing its prima facie entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).  Not only did Nevins Realty fail to establish its freedom from negligence (see Correia v. Professional Data Mgt., 259 A.D.2d 60, 65, 693 N.Y.S.2d 596 [1st Dept. 1999] ), but the lease for the premises requires Bayard's to indemnify Nevins Realty only upon a showing that Bayard's breached a covenant or condition of the lease, or a showing of “carelessness, negligence, or improper conduct” by Bayard's.  Because liability has not yet been established as against Bayard's, its duty to indemnify Nevins Realty has not yet been triggered (see Arias v. Sanitation Salvage Corp., 199 A.D.3d 554, 557, 159 N.Y.S.3d 14 [1st Dept. 2021];  see also Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 177–178 n.3, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990] ).

We have considered defendant's remaining arguments and find them unavailing.