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DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT].

The Second Department determined plaintiffs raised a question of fact when the terms of the lease created a duty on the part of the tenant (the City here) to maintain the abutting sidewalk:

Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property, and specifically imposes liability upon certain property owners for injuries resulting from a violation of the code provision (see Administrative Code § 7-210…).

As a general rule, the provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party … . This is in accordance with the principle that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, the Court of Appeals has recognized that there are exceptions to this general rule and that there are situations in which a party who enters into a contract may be said to have assumed a duty of care to third parties

The lease, inter alia, required the City, at its sole cost and expense, to take good care of the sidewalk, and “make all repairs thereto, ordinary and extraordinary, foreseen and unforeseen.” It also provided that the former owner “shall have no responsibility and shall not be required to furnish any services, make any repairs or to perform any other maintenance work.” The plaintiffs’ submission of this evidence raised a triable issue of fact as to whether the City’s lease was comprehensive and exclusive as to sidewalk maintenance so as to entirely displace the former landowner’s duty to maintain the sidewalk … . Hsu v City of New York, 2016 NY Slip Op 08348, 2nd Dept 12-14-16

NEGLIGENCE (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/CONTRACT LAW (TORT LIABILITY TO THIRD PARTIES, DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY)/LANDLORD-TENANT (SLIP AND FALL, DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/SLIP AND FALL (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])/SIDEWALKS (DESPITE THE CITY CODE PROVISION CREATING A NONDELEGABLE DUTY ON THE OWNER’S PART TO MAINTAIN AN ABUTTING SIDEWALK, THE TERMS OF THE LEASE RAISED A QUESTION OF FACT ABOUT THE TENANT’S LIABILITY [LIABILITY TO THIRD PARTIES ARISING FROM CONTRACT])

FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT.

The Second Department, reversing Supreme Court, determined the tenant was entitled to the return of the security deposit. The fact that the tenant did not return the keys did not show a failure to surrender the apartment:

The tenant established his prima facie entitlement to judgment as a matter of law on the cause of action alleging breach of the lease for failing to return the security deposit (see General Obligations Law § 7-103). The evidence established that the tenant paid the landlord a security deposit and vacated the apartment a few days before the lease terminated. In opposition, the landlord failed to raise a triable issue of fact. Contrary to the landlord’s contention, the tenant’s failure to return the keys prior to the expiration of the lease did not show a failure to surrender … . Furthermore, there was no provision in the lease requiring the tenant to notify the landlord that he was vacating the apartment. In fact, the “Tenant Cooperation Rider” stated that such notice was not required. Moreover, the landlord failed to submit evidentiary proof that the tenant damaged the apartment. Pezzo v 26 Seventh Ave. S., LLC, 2016 NY Slip Op 07310, 2nd Dept 11-9-16

LANDLORD-TENANT (FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT)/KEYS (LANDLORD-TENANT, FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT)/SECURITY DEPOSIT (LANDLORD-TENANT, FAILURE TO RETURN KEYS DID NOT CONSTITUTE A FAILURE TO SURRENDER THE APARTMENT, TENANT ENTITLED TO RETURN OF SECURITY DEPOSIT)

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QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG.

The Second Department determined Supreme Court properly denied the landlord’s (appellant’s) motion for summary judgment in this dog bite case. The plaintiff was bitten by a tenant’s dog. The court explained the relevant law:

… [To] “recover against a landlord for injuries caused by a tenant’s dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog'” … .

… [T]he appellant established his prima facie entitlement to judgment as a matter of law dismissing the third cause of action insofar as asserted against him … . In support of his motion, he submitted, inter alia, his deposition transcript and the deposition transcripts of the injured plaintiff and [the tenant]. This evidence demonstrated, prima facie, that the appellant was not aware, nor should have been aware, that the dog had any vicious propensities … . In opposition, however, the plaintiffs raised triable issues of fact as to whether the dog did indeed have vicious propensities and whether the appellant knew or should have known of them … . Kim v Hong, 2016 NY Slip Op 06698, 2nd Dept 10-12-16

ANIMAL LAW (QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG)/LANDLORD-TENANT (DOG BITE, QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG)/DOG BITE (QUESTION OF FACT WHETHER LANDLORD LIABLE FOR BITE BY TENANT’S DOG)

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CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY.

The Second Department, reversing (modifying) Supreme Court, determined plaintiff had made out a prima facie case for damages stemming from the defendant's breach of the implied warranty of habitability. Plaintiff held a proprietary lease in a cooperative. A storm damaged the terrace adjacent to the apartment. Plaintiff was entitled to damages for the period of time the terrace was closed:

The implied warranty of habitability, codified in the Real Property Law, provides that in every written lease for residential purposes, the landlord or lessor “shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety” (Real Property Law § 235-b[1]). In Solow v Wellner (86 NY2d 582, 587-588), the Court of Appeals clarified that Real Property Law § 235-b(1) includes three separate covenants: “(1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety” (id. at 587-588 [internal quotation marks omitted]). “A breach of warranty may be said to have occurred where the premises have not met the reasonable expectations of the parties” (7-82 Warren's Weed New York Real Property § 82.22 [2016]). Here, the plaintiff established that the water damage and subsequent closures of the terrace rendered it unfit for the uses reasonably intended by the parties … . Goldhirsch v St. George Tower & Grill Owners Corp., 2016 NY Slip Op 06060, 2nd Dept 9-21-16

LANDLORD-TENANT (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/REAL PROPERTY LAW (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/APARTMENTS (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/TERRACES (APARTMENTS, CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/HABITABIILITY, IMPLIED WARRANTY OF (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)

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LANDLORD DID NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY.

The Second Department determined the terms of the lease negated the claimed violation of an implied covenant of good faith and fair dealing. The plaintiffs leased defendants’ property to operate a car dealership. After learning that a local law prohibited parking cars without license plates on the property, the plaintiffs asked to be released from the lease. The landlord refused. The terms of the lease specifically stated (1) it was subject to any local law restrictions and (2) it made no representations the property was suitable to plaintiffs’ intended business:

The implied covenant of good faith and fair dealing is breached when a party acts in a manner that would deprive the other party of the right to receive the benefits of their agreement … . The implied covenant includes any promises which a reasonable promisee would be justified in understanding were included … . However, no obligation may be implied that would be inconsistent with other terms of the contractual relationship … . Here, a finding that the defendants breached the covenant of good faith and fair dealing would necessarily contradict explicit and unambiguous terms of the lease agreements and create additional obligations not contained in them. Specifically, the lease agreements, which the defendants submitted in support of their motion, provided that the written agreements superseded all “representations and understandings, written, oral or otherwise, between or among the parties with respect to the matters contained herein.” Additionally, the specific provisions in the lease agreements relating to parking were made subject to “any restrictions of local law, zoning or ordinance.” Finally, the lease agreements specifically provided that the landlord made no representation concerning the suitability of the premises for the plaintiffs’ intended business. Imposing a duty on the landlord to disclose zoning or local law restrictions would render those provisions ineffective … . These express and specific provisions in the lease itself conclusively establish a defense to causes of action alleging breach of the implied covenant of good faith and fair dealing … . 1357 Tarrytown Rd. Auto, LLC v Granite Props., LLC, 2016 NY Slip Op 05981, 2nd Dept 9-14-16

LANDLORD-TENANT (LANDLORD DOES NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY)/CONTRACT (LEASES, LANDLORD DOES NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY)/COVENANT OF GOOD FAITH AND FAIR DEALING (LEASES, LANDLORD DOES NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY)

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LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS.

In finding the out-of-possession landlord was entitled to summary judgment in this slip and fall case, the Second Department noted that the landlord’s reservation of a right to enter the property to inspect and make repairs does not impose a duty to make repairs. The plaintiff alleged she slipped on ice in the workplace parking lot:

Here, the plaintiff alleged that the defendant breached a common-law duty to keep the premises in a reasonably safe condition. The defendant established its prima facie entitlement to judgment as a matter of law by submitting proof that it was an out-of-possession landlord and, thus, had no duty to perform repairs or remove snow and ice from the premises … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had a duty to remove snow or ice under statute or regulation, the terms of the lease, or a course of conduct … . A landlord’s reservation of the right to enter property to inspect and make repairs does not in itself give rise to a duty to make repairs … . Keum Ok Han v Kemp, Pin & Ski, LLC, 2016 NY Slip Op 05908, 2nd Dept 8-31-16

NEGLIGENCE (SLIP AND FALL, LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS)/LANDLORD-TENANT (SLIP AND FALL, LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS)/SLIP AND FALL (LANDLORD’S RIGHT TO ENTER TO MAKE REPAIRS DOES NOT CREATE A DUTY TO MAKE REPAIRS)

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LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE.

The Second Department determined the lessee of property abutting a sidewalk and the city (NYC) were entitled to summary judgment in this slip and fall case. The city argued it did not have prior written notice of the hole in the sidewalk. The lessee, El Fuerte, argued it did not create the dangerous condition, did not violate any statute or ordinance, and the lease imposed no duty to repair the sidewalk. With regard to the liability of the abutting property owner, the court noted that, although a curb cut and pedestrian ramp leading from a sidewalk to the street are not the responsibility of the abutting property owner, the defect here was not in the curb cut or ramp:

… [A] lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty … . * * * … [A] provision of a lease which obligates a tenant to repair a sidewalk does not impose on the tenant a duty to a third party, such as the plaintiff. Martin v Rizzatti, 2016 NY Slip Op 05797, 2nd Dept 8-17-16

NEGLIGENCE (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/MUNICIPAL LAW (SIDEWALK SLIP AND FALL, LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/LANDLORD-TENANT (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SIDEWALKS (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)/SLIP AND FALL (LESSEE AND CITY NOT LIABLE FOR HOLE IN SIDEWALK; DEFECT WAS NOT IN THE CURB CUT OR PEDESTRIAN RAMP FOR WHICH THE ABUTTING PROPERTY OWNER WOULD NOT BE RESPONSIBLE)

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LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL.

The Second Department determined the jury was properly instructed to consider a tenant’s liability for a sidewalk slip and fall based upon the terms of the lease:

… [T]he Supreme Court properly submitted the issue of the tenant’s negligence to the jury. “Administrative Code of the City of New York § 7-210 imposes a nondelegable duty on a property owner to maintain and repair the sidewalk abutting its property” … . Generally, the “provisions of a lease obligating a tenant to repair the sidewalk do not impose on the tenant a duty to a third party, such as the plaintiff” … . However, 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,” the tenant may be liable to a third party … . Here, the owner demonstrated that a rider to the subject lease requiring the tenant to, at its own cost and expense, keep and maintain the sidewalk “in thorough repair and good order,” was so comprehensive and exclusive as to entirely displace the owner’s duty to maintain the sidewalk … . Paperman v 2281 86th St. Corp., 2016 NY Slip Op 05747, 2nd Dept 8-10-16

NEGLIGENCE (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/LANDLORD-TENANT (NEGLIGENCE, SLIP AND FALL, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SLIP AND FALL (LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)/SIDEWALKS (SLIP AND FALL, LANDLORD-TENANT, LEASE TERMS ALLOWED JURY TO BE INSTRUCTED ON TENANT’S POTENTIAL LIABILITY FOR A SIDEWALK SLIP AND FALL)

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HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.

The First Department, over an extensive dissent, determined the New York City Housing Authority (NYCHA) effectively made it impossible for the petitioner to meet the prerequisites for a hearing (paying use and occupancy arrears) on her “remaining family member” grievance. The case was therefore remitted for a hearing on the grievance:

The NYCHA Management Manual requires that a remaining family member grievant must remain current in use and occupancy to pursue the grievance (NYCHA Management Manual, ch 1, subd XII[D][2][b]). This Court has upheld that requirement (Matter of Garcia v Franco, 248 AD2d 263, 265 [1st Dept 1998], lv denied 92 NY2d 813 [1998]). However, in this case, NYCHA’s application of that rule to petitioner, and its resulting dismissal of her remaining family member grievance, was arbitrary and capricious. NYCHA failed and refused to recalculate use and occupancy based on petitioner’s income, notwithstanding that the NYCHA Management Manual requires that it do so, during the pendency of a remaining family member grievance, in order for it to determine use and occupancy as the lower of the tenant of record’s rent or the rent rate based on the income of the remaining occupant (Manual, at ch 1, subd XII[D][2][b])[FN1]. NYCHA also failed and refused to provide petitioner with information and documents necessary for her to apply for funds to pay the arrears in use and occupancy. As a result, it was impossible for petitioner to meet the condition precedent to a hearing. Matter of Figueroa v New York City Hous. Auth., 2016 NY Slip Op 05619, 1st Dept 7-21-16

MUNICIPAL LAW (HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)/LANDLORD-TENANT (NEW YORK CITY HOUSING AUTHORITY, HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)/NEW YORK CITY HOUSING AUTHORITY (HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE)

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OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED.

The Second Department determined defendant out-of-possession landlord did not demonstrate it did not cause the alleged radiator-defect which injured plaintiff. Therefore the landlord's motion for summary judgment was properly denied:

“[A]n out-of-possession landowner is generally not responsible for injuries that occur on its premises unless the landowner has retained control over the premises and is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct” … . However, ” liability may attach to an out-of-possession owner who has affirmatively created a dangerous condition or defect'” … .

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. Although the defendant demonstrated that it did not owe a duty to provide the plaintiff with a radiator cover …, the defendant failed to establish that it did not cause the radiator to become and remain in a defective, broken, and overheated condition. Gowen v Gabrielle Realty Holdings, LLC, 2016 NY Slip Op 04695, 2nd Dept 6-15-16

NEGLIGENCE (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/LANDLORD-TENANT (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)/OUT-OF-POSSESSION LANDLORD (OUT-OF-POSSESSION LANDLORD DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION, SUMMARY JUDGMENT PROPERLY DENIED)

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