Phyllis Horsely v. R.S.M Realty Company, R.S.M. Realty Corp., Robin Realty, LLC, 1465 Third Avenue, LLC, 1465 Third Avenue Restaurant Corp., George A. Bowman, Inc. and Arriba Arriba Mexican Restaurant

In an extensive Memorandum Decision of June 29, 2011, Justice Paul Wooten granted summary judgment in favor of Abrams Gorelick’s client, a commercial tenant, dismissing all claims and cross-claims against it, and finding that the defendant’s lease imposed no duty upon it to maintain or repair the sidewalk where the plaintiff allegedly was injured.

Plaintiff alleged that she had tripped on a “seam” or “groove” in a sidewalk next to two restaurants that were located in buildings owned by two defendants. Her fall, she claimed, was caused by a sidewalk groove that was missing concrete, and by a height differential between two sidewalk blocks.

Abrams Gorelick associates Jessica F. Napoli and Bryan Goldstein defended the operator of one restaurant, a commercial tenant operating under a written lease between it and a co-defendant. That lease provided that the Tenant was to take good care of the sidewalks adjacent to the restaurant and make repairs to them and preserve them in good working order and condition. A Rider, however, controlled. It made the Landlord responsible for making structural repairs to the exterior of the building, including the sidewalk, and keeping it in repair.

Napoli and Goldstein showed that the tenant had neither created the conditions that the plaintiff complained of, made repairs to the sidewalk, nor caused any defect to occur by any “special use” of the sidewalk—elements necessary to impose sidewalk liability upon an abutting tenant. The plaintiff’s speculation did not raise a triable issue of fact.

Co-defendants who owned the building, and therefore had a non-delegable duty to maintain the sidewalk under New York City Administrative Code § 7-210, did not defeat the motion with arguments about notice of a defective condition. The Lease did not give the tenant any obligation to provide notice, or require it to indemnify the owner.