Navarreto v. 995 Westchester Avenue LLC
35 A.D.3d 267
N.Y. App. Div.
2006
Check Treatment

Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 22, 2006, which, inter alia, denied third-party defendant’s motion for summary judgment, unanimously affirmed, without costs.

*268There are triable issues as to whether third-party defendant, the lessee of commercial premises, made special use of the metal doors on the sidewalk abutting the premises upon which plaintiff allegedly tripped and fell (see Keane v 85-87 Mercer St. Assoc., 304 AD2d 327 [2003]). The metal doors provided access to the building’s basement where third-party defendant maintained a hot water heater that was essential to its salon business. We note as well that the lease required third-party defendant to maintain the sidewalk in good repair and make nonstructural repairs.

The court properly denied that branch of third-party defendant tenant’s motion seeking dismissal of defendant landlord’s third-party claims for indemnification and contribution. As noted, there are triable issues as to whether negligence on the part of third-party defendant was a substantial factor in bringing about plaintiffs harm, and in advance of a determination as to liability and damages it is not possible to ascertain whether the particular contractual duty to indemnify set forth in the lease between the third-party litigants would be triggered. Concur—Buckley, EJ., Tom, Mazzarelli, Friedman and McGuire, JJ.