It is a staple in insurance defense litigation for conflicts to arise concerning whether a landowner of a property is liable for maintaining the sidewalk versus the tenant, especially if the lease agreement contains specific indemnification language. A 2020 New York decision sheds light on this issue as well as the importance of having an accurate deposition testimony.
In Bullock v. 1585 Realty Co. LLC, plaintiff was injured when she tripped/fell on the sidewalk/cellar doors in front of Wine & Liquor, a tenant of 1585 Realty Co. LLC., who was the owner of that property. The landowner and tenant executed a lease agreement, which contained language that delegated the owner to maintain public portions of the building (both interior and exterior) and delegated the tenant to maintain the building in good condition (including the sidewalk). However, the lease agreement made it clear that the cellar/vault doors were not part of same. Additionally, a rider provided that the tenant was responsible to maintain and clean the storefront, street entrance, and passageways to and from the building.
Wine & Liquor filed a motion for summary judgment seeking dismissal of plaintiff’s complaint and defendant, 1585’s indemnification cross-claim. The Court denied the aforementioned motion and ruled that “A landowner may maintain an indemnification action against a tenant who agrees to maintain the property [Xiang Fu He v. Troon Mgmt., Inc., 34 N.Y.3d 167, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019]; see also Wahl v. JCNYC, LLC, 133 AD3d 552, 20 N.Y.S.3d 65 (1st Dept 2015]” (Bullock v 1585 Realty Co. LLC, 2020 NY Slip Op 32104[U] [Sup Ct, NY County 2020]). Further, the Court cited to plaintiff’s deposition testimony, where it was uncertain as to whether plaintiff stepped on the sidewalk or the cellar/vault doors (which was excluded from the lease). Since the deposition testimony was unclear as to the precise location of the fall, the motion was denied as to dismissal of the indemnification cross-claim.
In the arena of insurance defense, we represent both landowners and tenants in various disputes similar to the litigation above and come across analogous situations in numerous cases. However, we must ensure that while deposing the plaintiff (in a personal injury related matter), we accurately pinpoint the precise location of the alleged accident as it is imperative for our defense efforts/strategy for the case. As seen in the case above, it can make all the difference between a successful summary judgment decision on indemnification versus a mere failed attempt.