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The Rogak Report: 31 Oct 2007 (Part III) ** Premises Liability - Sidewalks **

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  • Lawrence Rogak
    ISSUE OF LANDLORD S CONTROL OF STRIP MALL SIDEWALK PRECLUDES SUMMARY JUDGMENT IN SNOWY SIDEWALK SLIP AND FALL CASE Nucci v. Bozo s Army & Navy, Inc. and Park
    Message 1 of 1 , Oct 31, 2007

      ISSUE OF LANDLORD'S CONTROL OF STRIP MALL SIDEWALK PRECLUDES SUMMARY JUDGMENT IN SNOWY SIDEWALK SLIP AND FALL CASE

      Nucci v. Bozo's Army & Navy, Inc. and Park Tysen Associates
      2007 NY Slip Op 52103(U)
      Decided on October 30, 2007
      Supreme Court, Richmond County
      Gigante, J.
      Edited by Lawrence N. Rogak


      On February 5, 2005, plaintiff allegedly tripped and fell over a snow-covered defect in sidewalk in front of a store operated by Bozo's at 2742 Hylan Boulevard on Staten Island. The premises is owned by Park.

      Park is the owner of the Tyson's Park Shopping Center and Bozo's landlord. Plaintiff alleges that he fell as the result of a "cracked, broken, pitted, and/or uneven sidewalk in front of the store".

      The deposition testimony "supports Park's position that [Bozo's] was contractually obligated to maintain the sidewalk area. According to Park, it had never been notified by [Bozo's] of any defects in the sidewalk.  [Bozo's] admits that it had actual notice of the alleged defect, but it claimed that the landlord was advised of the need to repair the area prior to plaintiff's fall.  The lease between [Bozo's] and Park had a rider requiring [Bozo's] to repair and maintain the sidewalk in front of the store in good order .

      Park argued that there was no triable issue of fact as to Bozo's responsibility to repair and maintain the area in question.

      In opposition, Bozo's alleged that, notwithstanding the lease provisions, Park's exercise of dominion and control over the area in question in the years preceding plaintiff's accident established a pattern of behavior pursuant to which Park assumed sole responsibility for making repairs to the curb and sidewalk. In addition, Bozo's alleges that summary judgment was premature, as discovery was not yet complete, and all of the contractors hired by Park to perform work at the site of plaintiff's fall have yet to be joined. In particular, it was alleged that Park failed to respond to a Notice for Discovery and Inspection in which the names of such contractors were sought. Finally, Bozo's alleged that an issue of comparative negligence existed based on plaintiff's own deposition testimony, wherein he admitted that he did not see the trough of snow onto which he stepped before falling.

      "With respect to plaintiff's motion against [Bozo's]," held the Court, "it is undisputed that this defendant admitted actual notice of the sidewalk defect in front of the store, and that it was contractually obligated to maintain and repair same. Nevertheless, a party which enters into a contract to render services may be said to have a duty of care to third persons only in limited circumstances, and it has not been demonstrated as a matter of law that any of these circumstances exist. Moreover, [Bozo's] has raised a triable issue of fact as to whether or not contractors hired by Park to repair the curb and sidewalk area may have caused or created the alleged defect which caused plaintiff's accident. Thus, summary judgment on the issue of liability may not be granted against [Bozo's].

      "Park has likewise failed to demonstrate as a matter of law that it may not be held liable for plaintiff's injuries. In addition, since Park does not deny that it has failed to respond fully to plaintiff's discovery demands, it is not entitled to summary judgment at this stage of the litigation."

      Comment:  It is unusual, in a strip mall case, to have a court rule that there is a triable issue of fact as to whether or not the landlord exercised the kind of dominion and control that might relieve the tenant of its leasehold obligation to keep the sidewalks in good repair and free of ice and snow.

      Larry Rogak

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