MELLA v. RUSSIAN SAMOVAR INC (2026)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about July 14, 2025, which, to the extent appealed from as limited by the briefs, granted the motion of defendant/third-party defendant Alvin Nederlander Associates, Inc. (Nederlander) for summary judgment on its cross-claim for contractual indemnification against defendant/third-party plaintiff Russian Samovar, Inc. (Russian) and for summary judgment dismissing Russian's third-party complaint and the amended complaint as against Nederlander, unanimously affirmed.

Supreme Court properly determined that Nederlander, as an out-of-possession landlord, was not contractually obligated to make repairs or maintain the lighting which plaintiff alleged was the proximate cause of the accident (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] ).  Nederlander was responsible for making structural repairs to the demised premises, pursuant to the lease.  The alleged low lighting in the restaurant was not a structural defect because it was set by the restaurant's employees (see Uppstrom v. Peter Dillon's Pub, 172 A.D.3d 497, 499, 100 N.Y.S.3d 239 [1st Dept. 2019] ).  There is no evidence to suggest that the lighting was low due to Nederlander's failure to maintain the electrical system.

Additionally, Nederlander established that plaintiff's vague allegations in the bill of particulars and expert affidavit listing defects other than the low lighting were insufficient to raise a triable issue of fact as to the proximate cause of the accident.  Plaintiff's expert affidavit did not provide any “evidence connecting the alleged violations ․ to [plaintiff's] fall, other than speculation” (Lee v. Widlanski, 215 A.D.3d 457, 458, 186 N.Y.S.3d 640 [1st Dept. 2023];  see Daniarov v. New York City Tr. Auth., 62 A.D.3d 480, 481, 879 N.Y.S.2d 404 [1st Dept. 2009] ).  Moreover, even if the alleged defects raised by the expert, namely the stairs and handrail, were the proximate cause of plaintiff's accident, Nederlander is still entitled to summary judgment because those alleged defects are not significant structural or design defects for which Nederlander had a contractual obligation to maintain (Bawa v. JJ. Operating Inc., 234 A.D.3d 517, 517–18, 224 N.Y.S.3d 392 [1st Dept. 2025] ).

Supreme Court properly determined that Nederlander is entitled to contractual indemnification from Russian pursuant to the lease, as there are no questions of fact as to Nederlander's negligence.