Cinat v. Great Atlantic & Pacific Tea Co.

Appellate Division of the Supreme Court of New York

Cinat v. Great Atlantic & Pacific Tea Co.

2 A.D.2d 859, 155 N.Y.S.2d 956, 1956 N.Y. App. Div. LEXIS 4166

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 22, 1956

StatusPublished

This text of 2 A.D.2d 859 (Cinat v. Great Atlantic & Pacific Tea Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cinat v. Great Atlantic & Pacific Tea Co., 2 A.D.2d 859, 155 N.Y.S.2d 956, 1956 N.Y. App. Div. LEXIS 4166 (N.Y. Ct. App. 1956).

Pincite

Opinion

Plaintiff Mary Cinat was injured when she slipped and fell over an allegedly defective platform at the entrance of a store. She sued the Great Atlantic & Pacific Tea Company, operator of the store under a lease, to recover damages for personal injuries, and her husband sued said lessee for medical expenses and loss of services. The said lessee served a third-party summons and complaint on S. R. Dade Realty, Inc., the landlord of said premises, alleging a covenant by the landlord, contained in the lease, to make repairs to the exterior of the building. This appeal is by the landlord from an order denying its motion to dismiss the amended third-party complaint on the ground that it does not state facts sufficient to constitute a cause of action. Order reversed, without costs, and motion granted, with leave to respondent, if so advised, to serve a further amended third-party complaint within 20 days after the entry of the order hereon. Although the amended third-party complaint alleges a covenant on the part of appellant to repair, it contains no allegation that appellant retained any control over the premises, sufficient to give rise to liability for tort, or that appellant had retained the right to re-enter the premises for the purpose of making repairs. A landlord’s covenant to repair, standing alone, imposes on the landlord no liability in tort either to the tenant or to a third party. Such a liability is an incident to occupation and control, which is not deemed reserved by a covenant to repair. Neither may such a covenant be treated as a contract of indemnity, unless it is specifically stated so to be. (Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; De Clara v. Barber S. S. Lines, 309 N. Y. 620; Cullings v. Goetz, 256 N. Y. 287.) Nolan, P. J., Beldoek, Murphy, Ughetta and Kleinfeld, JJ., concur.

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Plaintiff Mary Cinat was injured when she slipped and fell over an allegedly defective platform at the entrance of a store. She sued the Great Atlantic & Pacific Tea Company, operator of the store under a lease, to recover damages for personal injuries, and her husband sued said lessee for medical expenses and loss of services. The said lessee served a third-party summons and complaint on S. R. Dade Realty, Inc., the landlord of said premises, alleging a covenant by the landlord, contained in the lease, to make repairs to the exterior of the building. This appeal is by the landlord from an order denying its motion to dismiss the amended third-party complaint on the ground that it does not state facts sufficient to constitute a cause of action. Order reversed, without costs, and motion granted, with leave to respondent, if so advised, to serve a further amended third-party complaint within 20 days after the entry of the order hereon. Although the amended third-party complaint alleges a covenant on the part of appellant to repair, it contains no allegation that appellant retained any control over the premises, sufficient to give rise to liability for tort, or that appellant had retained the right to re-enter the premises for the purpose of making repairs. A landlord’s covenant to repair, standing alone, imposes on the landlord no liability in tort either to the tenant or to a third party. Such a liability is an incident to occupation and control, which is not deemed reserved by a covenant to repair. Neither may such a covenant be treated as a contract of indemnity, unless it is specifically stated so to be. (Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; De Clara v. Barber S. S. Lines, 309 N. Y. 620; Cullings v. Goetz, 256 N. Y. 287.) Nolan, P. J., Beldoek, Murphy, Ughetta and Kleinfeld, JJ., concur.

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Bluebook (online)

2 A.D.2d 859, 155 N.Y.S.2d 956, 1956 N.Y. App. Div. LEXIS 4166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cinat-v-great-atlantic-pacific-tea-co-nyappdiv-1956.

Opinion

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