WOLFE v. IK (2006)

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated May 25, 2005, which granted the motion of the third-party defendant pursuant to CPLR 3211(a) to dismiss the third-party complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion to dismiss the third-party complaint is denied.

The plaintiff allegedly tripped and fell over a defective condition on a sidewalk adjacent to premises leased by the defendant third-party plaintiff, Mitchell Levine, and owned by the third-party defendant, IK Trust.   In addition to leasing one of the office spaces in IK Trust's building, Levine also leased certain parking spaces, including one located directly in front of his office and accessed through a curb cut in the sidewalk.   The lease required Levine to maintain in good repair “portions adjacent to the premises, such as sidewalks, driveways, lawns and shrubbery.”   IK Trust, however, retained a right of entry and inspection, as well as the right to perform any maintenance work deemed necessary, in its discretion, and to bill the cost of such work to Levine.   The lease also contained a provision requiring Levine to hold IK Trust harmless “from any claims for damages, no matter how caused.”

 An out-of-possession landlord “may be found liable for failure to repair a dangerous condition, of which it has notice, on leased premises if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs” (Chapman v. Silber, 97 N.Y.2d 9, 19, 734 N.Y.S.2d 541, 760 N.E.2d 329;  see Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642, 649 N.Y.S.2d 115, 672 N.E.2d 135), or if it affirmatively creates the dangerous condition that results in injury (see Portaro v. Tillis Inv. Co., 304 A.D.2d 635, 757 N.Y.S.2d 606).   Contrary to IK Trust's contention, we cannot conclude, as a matter of law, that the terms of the subject lease conclusively establish a defense to the allegations made in the third-party complaint (see CPLR 3211[a][1];  cf. Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Fast Track Funding Corp. v. Perrone, 19 A.D.3d 362, 796 N.Y.S.2d 164).   Moreover, the indemnity provision relied on by IK Trust is unenforceable because it purports to shift all responsibility for third-party claims to the tenant regardless of the landlord's own negligence (see General Obligations Law § 5-321;  Breakaway Farm, Ltd. v. Ward, 15 A.D.3d 517, 518, 789 N.Y.S.2d 730;  Gibson v. Bally Total Fitness Corp., 1 A.D.3d 477, 479, 767 N.Y.S.2d 135).   Construing the third-party complaint liberally and affording Levine the benefit of every possible favorable inference, we conclude that it states a viable cause of action (see CPLR 3211[a][7];  Leon v. Martinez, supra;  Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Goldfarb v. Schwartz, 26 A.D.3d 462, 811 N.Y.S.2d 414).

Accordingly, the Supreme Court should have denied IK Trust's motion pursuant to CPLR 3211(a) to dismiss the third-party complaint.

IK Trust's remaining contentions are without merit.