City of New York v. Kalikow Realty Co.

Judgment of the Supreme Court, New York County (Leonard N. Cohen, J.), entered April 17, 1986, which, inter alia, granted plaintiff City of New York’s motion for summary judgment, is affirmed, without costs and without disbursements.

Appeal from the order of the Supreme Court, New York County (Leonard N. Cohen, J.), entered March 17, 1986, which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for an order dismissing the complaint pursuant to CPLR 3211 (a) (7), is dismissed as subsumed in the judgment appealed from herein, without costs.

The facts are essentially those set forth in the dissent. As noted there, the city formally notified defendant Kalikow Realty Company that a defect in the sidewalk abutting its premises needed repair. This notification was pursuant to a violation placed against defendant directing it to repair the sidewalk, pursuant to the provisions of section 230 of the New York City Charter. This section provides, inter alia, that if necessary repairs are not made, the city can make them at the owner’s expense. Kalikow responded with a letter dated July 10, 1972, which reads as follows:

"Please be advised that we are in receipt of a violation (a Xerox copy of which is enclosed) on the above referenced property.

"We have erected a fence and repaired the sidewalk so as to be in a safe condition. We intend to start construction at the said site within the next year and shall until then and during the entire course of construction maintain the sidewalk in a safe condition.

"Upon completion of our building the sidewalk will be completely reconstructed. We request the City of New York not to proceed with any work as outlined on the violation since such work would of necessity be destroyed at the start of construction.”

At a time when the construction referred to in the letter was still under way, one Manos tripped and fell on a broken portion of that sidewalk. Manos sued the city and, although defendant Kalikow Realty Company was never joined, the construction contractor, Kalikow Realty and Construction Corporation, was sued.

The sole basis for the finding of liability against the city was its statutory duty to maintain the city sidewalks. The language of the letter, supra, however, clearly shows that Kalikow voluntarily assumed the duty to maintain the sidewalk in a safe condition during the course of the planned construction. Although, as the dissent emphasizes, the city had a nondelegable duty to maintain the sidewalk, it must be emphasized that that duty ran to Manos. By affirmatively sending the letter agreement prevailing upon the city not to proceed with any repair work, Kalikow became liable in indemnification for its failure to carry out its voluntary assumption of a duty to the city.

Similarly, in Burke v City of New York (2 NY2d 90), a railway agreed with the city that it would repair the trolley track rail as long as it remained in the public street. Although the agreement did not contain explicit language of indemnity, the Court of Appeals held that the railway’s successor would be required to indemnify the city for a judgment recovered by a pedestrian who had been injured on the rail. After reviewing the applicable case law, Judge Fuld, for the court, wrote: "In the light of these decisions, it is clear that an agreement to keep the track area in repair, whether or no it contains explicit language of indemnity, carries with it an obligation to indemnify the city for damages resulting from the company’s failure to perform its undertaking and discharge its duty. And, once the municipality’s right to indemnification is recognized, it obviously matters not whether the city chooses to assert its right by a suit separately brought against the railway company, as in City of Brooklyn (supra, 47 N. Y. 475), or, as here, by a cross complaint in the original action instituted by the injured person” (supra, at 94).

While the dissent, in this case, notes that the "record should contain a transcript of the proceedings in which the underlying liability determination was rendered so that an independent judgment can be made as to whether * * * the city’s conduct of the defense was as vigorous as it would have been had the prospect of indemnification not existed”, the city, in its reply affirmation by Herbert Perlman, advised that at the time of argument of the motion, it would "hand up to this Court for its information and perusal, a copy of the trial testimony taken at the Manos trial, to show the adequacy of the City’s defense in that action.” Further, the Supreme Court in the decision under review herein specifically pointed out that the defendant’s "conclusory assertion [that the city failed to adequately defend the Manos action] is unsupported and, in fact, is proven incorrect by the transcript of that trial. That transcript shows that an adequate defense was presented.”

Although the record as submitted to us by defendant-appellant Kalikow does not contain a copy of the transcript, clearly it was before the court when it granted plaintiff’s motion for summary judgment. Moreover, the fact that defendant Kalikow has not raised the city’s defense of the Manos action as an issue upon this appeal only confirms the Supreme Court’s finding that this was not a viable issue.

By its letter of July 10, 1972, Kalikow Realty assumed the obligation to maintain the sidewalk in a safe condition. The Manos accident was a direct result of its failure to live up to its agreement to assume the obligation to maintain the sidewalk. The Supreme Court correctly found, therefore, that the city has a right to indemnification. Concur—Ross, Asch and Ellerin, JJ.