Lorusso v M & S Levy Realty, LLC
Attorneys and Parties
Brief Summary
Premises liability and third-party indemnification/contribution stemming from a slip-and-fall at a commercial property.
The Supreme Court, Kings County denied All American Transit Mix Corp.'s motion for summary judgment dismissing M & S Levy Realty, LLC's third-party complaint.
The Appellate Division reversed and granted summary judgment dismissing all third-party claims against All American Transit Mix Corp.
All American neither owned, occupied, controlled, nor made special use of the accident area and did not create the alleged condition; thus it owed no duty to the plaintiff, defeating contribution and common-law indemnification. There was also no enforceable lease or contract between M & S Levy Realty, LLC and All American during the relevant period, defeating contractual indemnification and failure-to-procure-insurance claims. An unsigned lease proffered by M & S Levy Realty, LLC was unenforceable under General Obligations Law § 5-703[2] [New York Statute of Frauds requiring a lease of real property for longer than one year to be in a writing subscribed by the party to be charged], and its stated term began after the accident.
Background
The plaintiff, Michael Lorusso, alleged he slipped and fell while ascending an exterior metal staircase at property owned by M & S Levy Realty, LLC (M&S). M&S impleaded the plaintiff's employer, Advanced Transit Mix Corp. (Advanced), and All American Transit Mix Corp. (All American), asserting contribution, common-law indemnification, contractual indemnification, and breach of contract for failure to procure insurance. The third-party defendants moved for summary judgment, arguing All American had no connection to the property at the time of the accident.
Lower Court Decision
By order dated May 20, 2024, the Supreme Court, Kings County (Katherine A. Levine, J.), denied the branch of the third-party defendants' motion seeking summary judgment dismissing the third-party complaint as against All American.
Appellate Division Reversal
The Appellate Division reversed the order insofar as appealed from, with costs, and granted summary judgment dismissing all third-party claims against All American. The court held that All American did not own, occupy, control, or make special use of the accident area and did not create the condition, defeating contribution and common-law indemnification. It further held there was no contract between M&S and All American during the relevant period; the unsigned lease submitted by M&S was unenforceable under the Statute of Frauds and, in any event, began after the accident, defeating contractual indemnification and failure-to-procure-insurance claims.
Legal Significance
The decision reinforces that premises liability and related third-party claims require proof of ownership/occupancy/control/special use or creation of the hazard to establish a duty. Absent such duty or evidence of negligence by the proposed indemnitor, contribution and common-law indemnification cannot stand. It also underscores that contractual indemnification and failure-to-procure-insurance claims must rest on an enforceable written agreement; unsigned leases are void under General Obligations Law § 5-703[2].
A property owner cannot shift liability to a non-tenant/non-controller without evidence of duty or negligence, and cannot obtain contractual indemnification or insurance procurement relief without a signed, enforceable agreement under the Statute of Frauds.