| Lawrence v Celtic Holdings, LLC |
| 2011 NY Slip Op 05236 [85 AD3d 874] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Cheryl Lawrence, Respondent, v Celtic Holdings, LLC, etal., Defendants/Third-Party Plaintiffs-Appellants. City of New York et al., Third-PartyDefendants-Respondents. |
—[*1] Suckle Schlesinger PLLC, New York, N.Y. (Howard A. Suckle of counsel), forplaintiff-respondent. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and DrakeA. Colley of counsel), for third-party defendants-respondents.
In an action to recover damages for personal injuries, the defendants/third-party plaintiffsappeal from an order of the Supreme Court, Queens County (Kerrigan, J.), entered January 25,2010, which denied their motion for summary judgment dismissing the complaint andcounterclaims insofar as asserted against them and on their third-party cause of action forcontractual indemnification.
Ordered that the order is affirmed, with one bill of costs payable to the respondents appearingseparately and filing separate briefs.
The plaintiff alleges that she was injured on August 26, 2003, at 30-30 Thompson Avenue inLong Island City (hereinafter the subject premises), when she approached an internal staircaseand the heel of her shoe was caught in the carpeting of the floor, causing her to lose balance andfall down the stairs. She commenced this action to recover damages for personal injuries againstthe building owner, the defendant Celtic Holdings, LLC, and its managing agent, the defendantJeffrey Management Corp. The defendants commenced a third-party action, inter alia, forcontractual indemnification, against the City of New York and New York City Department ofDesign & Construction (hereinafter together the City), which had leased the subject premisesfrom the defendants. The City counterclaimed for indemnification and contribution.
The defendants moved for summary judgment dismissing the complaint and counterclaimsand on their third-party cause of action for contractual indemnification, arguing, inter alia, that asan out-of-possession landlord, they could not be liable for injuries occurring within the leasedspace, and that the City had agreed, in the lease, to indemnify the defendants with respect tolawsuits involving the subject premises. The Supreme Court denied the motion, and we affirm.[*2]
An out-of-possession landlord is not liable for injuriesoccurring on the premises unless it has retained control over the premises or is contractuallyobligated to perform maintenance and repairs (see Salaices v Gar-Ben Assoc., 82 AD3d 740, 741 [2011]; Lalicata v 39-15 Skillman Realty Co.,LLC, 63 AD3d 889, 890 [2009]; Taylor v Lastres, 45 AD3d 835 [2007]; Dunitz v J.L.M. Consulting Corp., 22AD3d 455, 456 [2005]; Roveto vVHT Enters., Inc., 17 AD3d 341, 341-342 [2005]). Here, the Supreme Court properlydetermined that pursuant to the subject lease, the defendants were contractually bound to performmaintenance and repairs to the area of the alleged accident at the time that it occurred.
Contrary to the defendants' contention, the Supreme Court did not abuse or improvidentlyexercise its discretion in considering the plaintiff's untimely opposition papers inasmuch as thedefendants were not prejudiced thereby (see CPLR 2004, 2214; Vlassis vCorines, 254 AD2d 273, 274 [1998]; Vento v City of New York, 247 AD2d 535[1998]; Kavakis v Total Care Sys., 209 AD2d 480 [1994]). Furthermore, the SupremeCourt properly found that the plaintiff's affidavit, submitted in opposition to the defendants'motion, raised a triable issue of fact as to whether the subject carpeting was defective andwhether the defendants had constructive notice of that condition (see generally Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]; Drago v DeLuccio, 79 AD3d 966[2010]; Dennehy-Murphy v Nor-TopiaServ. Ctr., Inc., 61 AD3d 629 [2009]).
The defendants failed to establish their prima facie entitlement to judgment as a matter oflaw on their third-party cause of action for contractual indemnification (see generally Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendants' contention that the Citybreached section 7.4 (c) of the lease is improperly raised for the first time on appeal.
We decline the City's request to search the record and award it summary judgment dismissingthe third-party cause of action for contractual indemnification. Rivera, J.P., Skelos, Hall andAustin, JJ., concur.