Callahan & Fusco was recently granted summary judgment on behalf of two clients, a landlord and a tenant, with the New York Supreme Court, Bronx County granting two separate motions for summary judgment and dismissing the plaintiff’s action against each of them on different grounds. See Juan Henriquez Vasquez v. Mosholu Petrol Realty LLC, et al.
Plaintiff’s Complaint arose from an alleged trip-and-fall accident on the sidewalk abutting the client landlord’s property, which consisted of a gas station and commercial building on the premises, leased to two separate tenants. While the client tenant leased a portion of the interior of the building to operate a Dunkin’ Donuts franchise, the majority of the property, including the exterior, was leased to the co-defendant to operate a gas station and minimart on the premises. Notably, this contract with the co-defendant gas station was a “triple net lease,” wherein that tenant was responsible for paying not only rent, but also all expenses related to insurance, maintenance, and taxes, and the landlord not retaining any right of reentry. Following plaintiff’s alleged trip-and-fall, he commenced this personal injury action against the landlord and both tenants.
After the exchange of written discovery, C&F filed two motions for summary judgment to dismiss the Complaint: the first to dismiss the defendant landlord as an out-of-possession landlord under New York law, and the second to dismiss the defendant tenant based on the interior nature of their leased portion of the property. In support of these motions, the defendants submitted their respective lease agreements and heavily emphasized for the Court the language contained within, detailing the obligations of each party on the involved premises. It was also crucial to wait for plaintiff’s initial discovery responses, which included photographs of the specific area where the plaintiff allegedly fell, negating any arguments with respect to prematurity, as there could be no dispute as to the specific area in question once the photographs were disclosed.
Despite plaintiff’s various opposing arguments, the Court agreed with the defendants and granted both motions on the grounds that neither client had any responsibility for the area where the plaintiff allegedly fell. In the lengthy Decision and Order, the Court referenced the triple net lease with the co-defendant tenant, and held that the lease required the co-defendant’s responsibility for the sidewalks, curbs, drives and pathways on the property and all paved areas. The Court further referenced the defendant tenant’s lease, specifically a clause providing that the lease is exclusively for use of the building and for no other purpose. While plaintiff argued that the motions were premature ahead of party depositions, the Court found that the plaintiff failed to demonstrate that further discovery might lead to relevant evidence or facts essential to justify opposition, as the mere hope that such evidence may be uncovered during discovery is insufficient. Ultimately, the Court held that the moving defendants established, prima facie, that they had no duties or responsibilities with respect to the sidewalk upon which plaintiff allegedly fell, as the lease was unambiguous in its terms, and plaintiff’s counsel could not dispute it.
From a defense perspective, these motions demonstrate the importance of carefully reviewing extensive lease agreements in order to seize the opportunities presented within them. While indemnification terms were also present in the involved agreements, tender demands went unanswered, and it was thus decided to test the strength of these leases before the Court. In future cases of a similar nature, it may thus be recommendable to attempt an early motion for summary judgment like this, in lieu of the further delays and expenses that come along with party depositions or other unnecessary discovery.