Hakim v. 65 Eighth Avenue, LLC

42 A.D.3d 374, 840 N.Y.S.2d 323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 19, 2007
• Status: Published

Opinions

Order, Supreme Court, New York County (Debra A. James, J.), entered July 20, 2006, which, to the extent appealed from as limited by the briefs, denied defendants’ cross motion for summary judgment, modified, on the law, the cross motion granted to the extent of dismissing the complaint as against defendant Wartski, and otherwise affirmed, without costs.

Plaintiff tenant was injured when the metal roll-up security gate outside her store became detached from the building. An out-of-possession landlord who reserves in the lease a right of reentry to inspect the premises and make necessary repairs is deemed to have constructive notice of any existing statutory violations (see Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 566-567 [1987]). The damage to the security gate was allegedly caused by prolonged water exposure from a leaking roof. Defendants were responsible, under the lease, for repairs to the structure and the roof. Therefore, despite being an out-of-possession landlord, defendants cannot disclaim responsibility for the accident as a matter of law.

Defendants assert that sections 27-127 and 27-128 of the New York City Administrative Code are not proper statutory predicates to liability. Because this issue was raised for the first time in defendants’ reply brief, it is not properly before the court (see Markovitz v Markovitz, 29 AD3d 460 [2006]), and, in any event, the argument is without merit. Should defendants be found negligent, they may not compel plaintiff to provide a defense and indemnification, as provided in the lease, as defendants cannot be indemnified for their own negligence (see General Obligations Law § 5-321; Delgiudice v Papanicolaou, 5 AD3d 236 [2004]).

The court granted plaintiffs motion to add “AJW Management” as a party defendant to the action. Plaintiff seeks to impose individual liability on Wartski, who was apparently the sole employee and shareholder of AJW Management, because he undertook the management of the premises. However, individual liability cannot be based upon an allegation that amounts to mere nonfeasance unless plaintiff establishes, as a matter of law, that the managing agent was in complete and exclusive control of the premises (Gardner v 1111 Corp., 286 App Div 110, 112 [1955], affd 1 NY2d 758 [1956]). Plaintiffs failure to do so warranted summary dismissed of the complaint as against Wartski in his individual capacity.

We have considered defendants’ remaining arguments and find them to be without merit. Concur—Tom, J.E, Saxe, Marlow and Malone, JJ.