WAGNER, LEANNE J. v. WATERMAN ESTATES, LLCWAGNER, LEANNE J. v. WATERMAN ESTATES, LLC
Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered May 27, 2014. The order denied the motion of defendants third-party plaintiffs for summary judgment dismissing the cоmplaint and granted the motion of third-party
It is hereby ordered that said appeal by defendant Timothy Waterman from the order insofar as it granted third-party defendant‘s motion is unanimously dismissed and the order is modified on the law by granting defendants’ motion in part and dismissing the complaint against defendant Timothy Waterman, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained on March 3, 2010 when a pоrtion of a concrete step crumbled when she stepped on it, causing her to fall. The single-family home where the incident occurred was owned by defendant third-pаrty plaintiff Waterman Estates, LLC (Estates) and leased by plaintiff‘s husband, third-party defendant. Defendant third-party plaintiff, Timothy Waterman (Waterman), is the sole member and employee of Estates. Defendants moved for summary judgment dismissing the complaint, and third-party defendant sought summary judgment dismissing the third-party complaint, for contractual and common-law indemnification.
We agree with defendants that Supreme Court erred in denying that part of their motion for summary judgment dismissing the complaint against Waterman, and we therefore modify the ordеr accordingly. “The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfеasance, i.e., an affirmative tortious act; personal liability cannot be imposed on a corporate officer for nonfeasance, i.e., a failure to act” (Peguero v 601 Realty Corp., 58 AD3d 556, 559 [2009]). Plaintiff alleged that Waterman applied salt to the step during the winter months, which contributed to the deterioration of the concrete, thereby cоmmitting “misfeasance or malfeasance.” Waterman denies that he applied salt to the step. We conclude that, inasmuch as treating icy surfaces does not constitute “an affirmative tortious act,” Waterman is not personally liable for any negligence of Estates (id.; see Lloyd v Moore, 115 AD3d 1309, 1309-1310 [2014]; see also Wesolek v Jumping Cow Enters., Inc., 51 AD3d 1376, 1378-1379 [2008]).
We conclude, however, that the court properly denied that part of defendants’ motion with respect to Estates. “A landowner is liable for a dangerous or defective condition on [its] property when the landownеr created the condition or had actual or constructive notice of it and a reasonable time within which to remedy it” (Sniatecki v Violet Realty, Inc., 98 AD3d 1316, 1318 [2012] [internal quotation marks omitted]; see Anderson v Weinberg, 70 AD3d 1438, 1439 [2010]). As a preliminary matter, we conclude thаt defendants failed to establish that Estates, as an out-of-possession landlord, had no duty to plaintiff. “A landlord may be liable for failing ‘to repair a dangerous condition, of which it has notice, on leased premises if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs‘” (Litwack v Plaza Realty Invs., Inc., 11 NY3d 820, 821 [2008]). Here, the lease agreement provided that the landlord and its agents shall have the right to enter the premises for purposes of inspecting and making any repairs deemed appropriate for the preservation of the premises. Indeed, Waterman testified that he visually inspected the premises when he mowed the yаrd or plowed the driveway and that he had made certain repairs while plaintiff lived at the premises. Further, he made a temporary repair to the step and рlaced a barrier to that area within 24 hours of plaintiff‘s fall. Thus, defendants failed to establish that Estates relinquished complete control of the premises to the tenant (see Gronski v County of Monroe, 18 NY3d 374, 379-381 [2011], rearg denied 19 NY3d 856 [2012]).
Even assuming, arguendo, that defendants established their entitlement to judgment on the issue whether Estates caused or had actual or constructive notice of the alleged dangerous condition, we conclude that plaintiff raised an issue of fact sufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Waterman testified at his deposition that he painted the step in 2007 and that there were cracks in the concrete at that time. Plaintiff testified that Waterman was present in May 2009 when she painted the stеp. She testified that there were “many cracks” and that the concrete was “not good[,] . . . very run down, dimply.” According to plaintiff, on that occasion, Waterman statеd that he would not “put any more money into the home.” Contrary to defendants’ contention, plaintiff‘s affidavit in opposition to the motion expands upon her description of the condition of the concrete but does not contradict her deposition testimony. In any event, plaintiff supported her affidavit with photographs takеn within 24 hours of her fall depicting the cracked and pitted condition of the concrete step (see Anderson, 70 AD3d at 1439). We therefore conclude that plaintiff raised an issue оf fact whether Estates had actual notice of the alleged dangerous condition.
Plaintiff also submitted the expert affidavit of an architect stating that the pitted сondition of concrete, i.e., spalling, creates pockets in the concrete surface, which collect water that is
In view of our determination with respect to Waterman‘s entitlement to dismissal of the complaint against him, any contentions of Waterman with respect to thе third-party action are moot. We conclude that the court properly granted third-party defendant‘s motion for summary judgment dismissing the third-party complaint with respect to Estates, seeking contractual and common-law indemnification from plaintiff‘s husband. The lease agreement provided that the “Landlord shall not be liable for any damage or injury of or to the Tenant or the Tenant‘s family . . . and Tenant hereby agrees to indemnify, defend and hold Landlord harmless from any and all claims or assertions of every kind and nаture.” We conclude that, inasmuch as the lease agreement purports to exempt Estates from liability for its own acts of negligence, it is void and unenforceablе pursuant to