Case Notes

The tenant moved to dismiss the landlord's monetary claims and the landlord sought summary judgment in its favor on all claims. The court denied the landlord's request for summary judgment, finding that the landlord had not presented evidence in admissible form that would support such a move — specifically, the landlord had only unauthenticated emails and rent ledgers as proof of an agreement between the parties. And, stated the court, it is “well-settled that in a month to month tenancy, created after expiration of the lease, a tenant is not liable to pay the rent specified in the expired lease, absent proof of a contract between the parties. (1400 Broadway Associates v. Henry Lee & Co., 161 Misc.2d 497, 614 N.Ys.2d 704 (Civ. Ct. NY County 1994).” In other words, when a landlord has not proven that the payment due following the expiration of the lease was bargained for and agreed upon, the landlord cannot unilaterally bind the tenant to the previously bargained-for amount. See, Eshaghian v. Adams, 28 Misc 3d 1215[a], 957 N.Y.S.2d 635 (Civ. Ct. NY County, 2010). “In the instant matter, landlord's monetary claim, with the exception of use and occupancy, is based on the unproven premise, that after the lease expired, tenant agreed to pay rent and real property taxes in the amount specified in the lease.” The court went on: “Both sides concede that the parties did not enter into a written contract to extend the terms of the expired lease or a written contract to agree to the rent specified in the lease. Tenant further unequivocally denies having agreed to pay rent, taxes or legal fees pursuant to the terms of the expired lease.” In addition, the lease itself stated that the tenant was required to pay rent only during the term of the lease, and that the tenant had the right to extend the lease for only one year after its initial term. For all of these reasons, the court found that there remained factual issues concerning the amount of back rent the tenant agreed to pay after the expiration of the lease.

The court further noted that, as this was a holdover proceeding and not one for nonpayment of rent and other fees, its main purpose was to determined which party should have the use and occupancy of the disputed premises going forward. The court would be authorized to order a tenant to pay use and occupancy dating back to the commencement of the proceeding, but only if the amount of arrears was not in dispute. Here, there remained a dispute as to the amount the tenant owed, so a plenary proceeding was the proper method for resolving the issues. Therefore, the court granted the tenant's motion to dismiss the monetary causes of action, leaving the landlord free to seek use and occupancy damages in a more appropriate forum.

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Landlord Not Liable to Third Party

Because a plaintiff in a slip-and-fall action did not adequately allege that a defect in the leased commercial premises caused her accident, and because the tenant had contractually agreed to indemnify the landlord against liability to third parties, an appellate court determined that the trial court erred in denying the landlord's motions to dismiss the plaintiff's causes of action against her. Bilska v. Truszkowski, 2019 N.Y. App. Div. LEXIS 2518 (2d Dept. 4/3/19).

The tenant restaurant operator and the landlord were parties to a lease whose rider required the tenant to obtain general liability insurance indemnifying the landlord “against any liability, claim, or payment on account of or arising from the Tenant's possession, use or occupation of the premises.”

The plaintiff in this slip-and-fall action brought suit against the tenant and the landlord, among others. The landlord moved for summary judgment, citing not only the indemnification clause of the commercial lease parties' contract, but also the fact that the plaintiff had not adequately alleged fault on the landlord's part. The trial court denied the landlord's motions, prompting this appeal.

New York's Appellate Division, Second Department, reversed on the landlord's issues, first noting that in a slip and fall case, a defendant can establish a prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the accident. Buglione v. Spagnoletti, 123 AD3d 867. But while proximate cause may be established by the plaintiff in a slip-and-fall action by inference from the circumstances of the accident (Voivodic v. City of New York, 148 AD3d 1086), the evidence on the record must render any other possible causes “sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation (Thomas v. New York City Tr. Auth., 194 AD2d 663).”

In this case, the slip-and-fall plaintiff alleged that the accident occurred because the floor was wet due to a leak in the ceiling, but she had admitted in her deposition testimony that she had not seen any such leak. Her only evidence in this regard was that “there must have been a drip from the ceiling because the ground was wet.” On the other hand, the tenant's principal had testified at his deposition that there had once been a ceiling leak but that it was not in the location of the plaintiff's slip and fall. Faced with these two statements, the court determined that the plaintiff had failed to raise a triable issue of fact; as such, the trial court had erred by denying the landlord's motion for summary judgment on this basis.

Additionally, the court found that the landlord was entitled to summary judgment on her third-party cause of action for contractual indemnification. “The lease rider provided that [tenant] was obligated to indemnify the landlord 'against any liability, claim, or payment on account of or arising from the Tenant's possession, use or occupation of the premises,' and required [tenant] to obtain general liability insurance for the mutual benefit of both parties, naming the landlord as an insured. The landlord established, prima facie, that the accident fell within the scope of the indemnification agreement,” stated the court. “To the extent that the parties' agreement could be interpreted to require [tenant] to indemnify the landlord for her own negligence, the subject indemnification provision is not rendered unenforceable by General Obligations Law §5-321, which provides that an agreement that purports to exempt a lessor from its own negligence is void and unenforceable.” That is because, when the liability involved is to a third party, General Obligations Law §5-321 doesn't preclude enforcement of an indemnification provision in a commercial lease “negotiated at arm's length between two sophisticated parties when coupled with an insurance procurement requirement.” Karanikolas v. Elias Taverna, LLC, 120 AD3d 552.