Hudson v. BP Prods. N. Am., Inc.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Hudson v BP Prods. N. Am., Inc.
2026 NY Slip Op 04492
July 22, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Albert M. Hudson, plaintiff-respondent,
v
BP Products North America, Inc., et al., defendants-respondents, D & S Advance Automotive Repair, Inc., appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 22, 2026
2024-10287, (Index No. 506108/18)
Francesca E. Connolly, J.P.
William G. Ford
Helen Voutsinas
Laurence L. Love, JJ.
Cascone & Kluepfel, LLP, Farmingdale, NY (Kyle R. Silverstein and Howard B. Altman of counsel), for appellant.
Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Kenneth J. Gorman], of counsel), for plaintiff-respondent.
Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Lorin A. Donnelly of counsel), for defendants-respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant D & S Advance Automotive Repair, Inc., appeals from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated July 25, 2024. The order denied that defendant's motion for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it.
ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The defendant Paar Equities, Inc. (hereinafter Paar), owned certain property located in Brooklyn, which was leased to the defendant Cypress Hills Service Center, Inc. (hereinafter Cypress), in 1999 and operated as a BP gas station. The defendant D & S Advance Automotive Repair, Inc. (hereinafter D & S), subleased a portion of the property from Cypress. On January 2, 2018, the plaintiff allegedly was injured when he tripped and fell on a sidewalk in front of the subject property. The plaintiff thereafter commenced this action to recover damages for personal injuries.
Paar, Cypress, and the defendants BP Products North America, Inc., and BP North America, Inc. (hereinafter collectively the BP defendants), joined issue and asserted cross-claims against D & S. D & S moved for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it. In an order dated July 25, 2024, the Supreme Court denied the motion. D & S appeals.
As an initial matter, the Supreme Court erred in determining that the sublease agreement was not properly authenticated. "[A] private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established" (Young v Crescent Coffee, Inc., 222 AD3d 704, 705 [internal quotation marks [*2]omitted]; see Sherrod v Mount Sinai St. Luke's, 204 AD3d 1053, 1055). A lease may be authenticated through deposition testimony (see Young v Crescent Coffee, Inc., 222 AD3d at 705; Choudhry v Starbucks Corp., 213 AD3d 521, 522). Here, the deposition testimony of both parties to the sublease agreement adequately authenticated the signatures on the sublease agreement.
However, the Supreme Court correctly determined that D & S failed to eliminate all triable issues of fact with respect to the party responsible for the area of the sidewalk in which the plaintiff allegedly was injured. "As a general rule, the provisions of a lease obligating a tenant to repair [a] sidewalk do not impose on the tenant a duty to a third party" (Brady v 2247 Utica Ave. Realty Corp., 210 AD3d 621, 622 [internal quotation marks omitted]; see Maltese v Metropolitan Transp. Auth., 179 AD3d 780, 784). "Only where a lease agreement is so comprehensive and exclusive as to sidewalk maintenance as to entirely displace the landowner's duty to maintain the sidewalk, may the tenant . . . be liable to a third party" (Brady v 2247 Utica Ave. Realty Corp., 210 AD3d at 622 [internal quotation marks omitted]; see Mule v Invite Health at New Hyde Park, Inc., 180 AD3d 693, 694).
Here, the evidence submitted by D & S failed to eliminate triable issues of fact as to whether the sublease had displaced the BP defendants' duty to the plaintiff regarding the maintenance of the sidewalk (see Yanovskiy v Tim's Diagnostic's Auto Ctr., 170 AD3d 1089, 1090; Hsu v City of New York, 145 AD3d 759, 761; Paperman v 2281 86th St. Corp., 142 AD3d 540, 541). Further, D & S failed to establish, prima facie, that the plaintiff fell in an area of the sidewalk that it was not responsible for maintaining (see Earle v City of New York, 223 AD3d 880, 880; cf. Rodriguez v City of New York, 295 AD2d 590).
The Supreme Court also properly denied those branches of D & S's motion which were for summary judgment dismissing the BP defendants' cross-claims for common law indemnification and contribution insofar as asserted against it. "[A] party moving for summary judgment dismissing a common-law indemnification claim can meet its prima facie burden by establishing that the plaintiff's accident was not due to its own negligence" (Burgos v 14 E. 44 St., LLC, 203 AD3d 688, 689 [internal quotation marks omitted]; see Cutler v Thomas, 171 AD3d 860, 861). "This may be accomplished by establishing that the moving party had no duty to maintain the area where the plaintiff was allegedly injured" (Burgos v 14 E. 44 St., LLC, 203 AD3d at 689; see Crystal v Atlas Roll-Off Corp., 237 AD3d 1041, 1042). "Similarly, a party moving for summary judgment dismissing a claim for contribution must make a prima facie showing that it did not owe a duty of reasonable care independent of any contractual obligations, or a duty of reasonable care to the plaintiff" (Lorusso v M & S Levy Realty, LLC, 243 AD3d 649, 651 [internal quotation marks omitted]; see 25-86 41st St., LLC v Chong, 235 AD3d 813, 815). Here, D & S failed to establish, prima facie, that the sublease did not entirely displace the BP defendants' duty to maintain the sidewalk and that it did not owe a duty of care to the plaintiff to maintain the area of the sidewalk in which he allegedly fell (see Burgos v 14 E. 44 St., LLC, 203 AD3d at 690).
Accordingly, the Supreme Court properly denied D & S's motion for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against it, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
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