Joseph Guzman v. Robert L. Howe et al
Leon Ruchelsman
Joseph Guzman,
Plaintiff
-against-
Robert L. Howe, Diana T. Howe, and
Steger Restaurant, Inc.,
Defendants
Index No. 510228/2021
Attorneys and Law Firms
Harris, Keenan & Goldfarb PLLC, New York (Seth A. Harris of counsel) for Plaintiff.
Harfenist Kraut & Perlstein, New York (Heather Leigh Smar of counsel), for Defendants Robert L. Howe and Diana T. Howe.
McManus Atheshoglou Aiello & Apostolakos, PLLC, New York (Jaclyn A. Martini of counsel), Defendant Steger Restaurant, Inc.
The Court granted Summary Judgment in favor by decision and order Dated October 5, 2023.
The Supreme Court, Kings County recently granted our client Summary Judgment in connection with a personal injury action in which the Plaintiff sought damages for injuries allegedly sustained when he tripped and fell on an allegedly defective sidewalk condition. At the time of the accident, our client was a commercial tenant at the Premises. Our motion sought to dismiss Plaintiff’s claims on the basis that the commercial tenant did not owe a duty to Plaintiff; that the commercial tenant did not cause or create the alleged sidewalk defect and was not obligated to repair the alleged defective sidewalk condition that caused Plaintiff’s accident. Specifically, we argued NYC Administrative Code §7-210 imposes a non-delegable duty upon property owners to maintain and repair the sidewalk abutting their property, and specifically imposes liability upon property owners for injuries resulting from a violation of the statute. In addition, we argued our client owed no contractual duty under its Lease to repair any structural sidewalk defect, such as the sidewalk flag height differential that Plaintiff alleged caused his accident. We further argued that assuming, arguendo, a contractual obligation on the part of our client, which was denied, our client, as a commercial tenant at the Premises owed no duty to Plaintiff. Our motion argued that a contractual undertaking, standing alone, will not give rise to tort liability to a third-party, unless (1) the contracting party, in failing to exercise reasonable care in the performance of his duties, “launche[s] a force or instrument of harm;” (2) the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; or (3) the contracting party has entirely displaced the other party’s duty to maintain the premises safely. Our motion further argued that in the instant matter, none of the exceptions applied and Plaintiff’s claims asserted against our client should be dismissed. We further argued that given the owner performed a repair of the sidewalk three months prior to Plaintiff’s accident, any alleged defective or hazardous condition on the sidewalk at the time of the Plaintiff’s accident was created by the owner and/or their contractor.
The Owner’s Cross-clams were also dismissed. With regard to the Owner’s cross claims for indemnification and breach of contract for failure to procure insurance, we argued that the indemnification provisions of the lease were inapplicable since the Plaintiff’s accident did not arise out of any act, omission, breach or negligence of the tenant and are unenforceable to the extent they seek to impose any indemnification obligations on the tenant for claims arising out of the owners’ negligence. Finally, with regard to the breach of contract claim, we further argued that the tenant did in fact procure the appropriate insurance required under the Lease, and specifically, maintained a policy which named the owner as additional insureds.
Defendant’s motion for Summary Judgment dismissing Plaintiffs Amended Verified Complaint and all cross-claims asserted by Defendants is GRANTED.