| Reyes v Morton Williams Associated Supermarkets, Inc. |
| 2008 NY Slip Op 03509 [50 AD3d 496] |
| April 22, 2008 |
| Appellate Division, First Department |
| Francisco Reyes et al., Respondents, v Morton WilliamsAssociated Supermarkets, Inc., Defendant, Emil Mosbacher Real Estate LLC, Appellant, andRed and White Markets, Inc., Respondent. |
—[*1] Goldblatt & Associates, P.C., Mohegan Lake (Spencer M. Fein of counsel), for Franciscoand Benefactora Reyes, respondents. Paganini, Herling, Cioci, Cusumano & Farole, Lake Success (Peter A. Cusumano ofcounsel), for Red and White Markets, Inc., respondent.
Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered July 12, 2007, insofaras it, upon reargument, denied the motion of defendant Emil Mosbacher Real Estate LLC(Mosbacher) for summary judgment dismissing the complaint as against it, unanimouslyreversed, on the law, without costs, Mosbacher's motion granted and the complaint dismissed asagainst it. The Clerk is directed to enter judgment accordingly. That part of the appeal from thedismissal of Mosbacher's cross claims for contractual indemnification against Red and WhiteMarkets unanimously dismissed, without costs, as academic. Appeal from order, same court andJustice, entered March 19, 2007, insofar as it dismissed Mosbacher's cross claims for contractualindemnification against Red and White, unanimously dismissed, without costs, as superseded bythe appeal from the July 12 order.
The injured plaintiff, an employee of the Associated Supermarket operated by Red and WhiteMarkets at 15 East Kingsbridge Road in the Bronx, testified at his deposition that he was walkingup a concrete ramp in the rear stockroom of the store when he slipped on water that hadapparently dripped from overhead refrigeration pipes and accumulated on the ramp. He furthertestified that he tried to hold onto something to break his fall, but there was nothing to grab.Plaintiff's engineering expert submitted an affidavit concluding, based on his examination of theramp, a conversation with plaintiff, and a review of his deposition testimony, that the lack of[*2]handrails violated the New York City Building Code, therebydeviating from good and accepted engineering practice, and was a substantial cause of theaccident.
It is well settled that an out-of-possession landlord such as Mosbacher is generally not liablefor negligence with respect to the condition of the demised premises unless it "(1) is contractuallyobligated to make repairs or maintain the premises, or (2) has a contractual right to reenter,inspect and make needed repairs and liability is based on a significant structural or design defectthat is contrary to a specific statutory safety provision" (Vasquez v The Rector, 40 AD3d 265, 266 [2007]).
In granting plaintiff reargument and denying Mosbacher summary judgment, the motioncourt found that plaintiff had raised a triable issue of fact whether Mosbacher was subject toliability because it appeared that the lack of a handrail is a statutory violation. However, not onlyis the applicability of the Building Code a purely legal question for the court to determine (see Buchholz v Trump 767 Fifth Ave.,4 AD3d 178, 179 [2004], affd 5 NY3d 1 [2005]), but, also, none of the sections ofthe Building Code relied upon by plaintiff's expert, which relate to means of egress frombuildings and require handrails on certain interior stairs and ramps used in lieu of such stairs,apply to the ramp in question (cf. Gaston v New York City Hous. Auth., 258 AD2d 220,224 [1999]). Moreover, it is undisputed that the ramp and overhead refrigeration pipes, whichwere installed by Red and White Markets after it took possession of the premises and maderenovations, were not located in a public portion of the building, the stockroom being specificallyoff limits to the public. Thus, there is no basis on which to impose liability on Mosbacher, whichwas required by its lease with Red and White Markets to maintain and repair only the publicportions of the building. Red and White Markets, on the other hand, was required, at its sole costand expense, to make all nonstructural repairs to the premises.
With respect to contractual indemnification, the relevant portion of that clause provides thatRed and White Markets will indemnify Mosbacher against any and all claims, suits, actions ordamages arising from any personal injury or damage to property sustained on the premises, andfor all costs, counsel fees and expenses incurred in defense of any actions, unless caused by orresulting from Mosbacher's negligence. The summary dismissal of Mosbacher's cross claims waspremature, as there was a possibility Mosbacher would be found at trial not to have actednegligently. In such event, the broad language of the indemnification clause would haveobligated Red and White Markets to indemnify Mosbacher (cf. Rivera v Urban Health Plan, Inc., 9 AD3d 322 [2004]).However, in light of our dismissal of the complaint as against Mosbacher, the question ofindemnification is academic. Concur—Mazzarelli, J.P., Andrias, Catterson and McGuire,JJ.