Partner Dan Stewart closed out 2020 with a summary judgment win in Kings County Supreme Court. The female plaintiff claimed that she tripped and fell due to a cracked exterior sidewalk as she entered a retail clothing store, represented by Fleischner Potash LLP. Under the retailer’s lease agreement with the building landlord, it was the landlord’s duty to address any structural problems with the sidewalk, and FP tendered the retailer’s defense to the landlord at the outset of the case. When the landlord denied the tender request, FP impleaded the landlord as a third party defendant. The landlord’s representative admitted during his deposition testimony that the sidewalk was their responsibility, although he tried to evade that responsibility by suggesting that the retailer failed to provide notice of the cracked sidewalk condition.
In opposition to FP’s summary judgment motion, both plaintiff and the landlord argued that site photos showed that the crack was caused by a concrete “ramp” installed over the sidewalk immediately outside the retailer’s entryway. Without any evidence, both parties argued that the ramp must have been installed by the retailer, who therefore should be kept in the case. The court was unpersuaded by that argument, and in its decision granting FP’s motion, made explicit reference to the terms of the lease agreement that was the basis for Stewart’s motion.
FP’s client is now weighing its options on pursuing the landlord for contractual indemnification and recovery of defense costs.
To learn more about this decision, or to learn how Fleischner Potash LLP can help with your team’s insurance defense claims, please contact Dan at (646) 520-4255 or by email at firstname.lastname@example.org.