        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

546
CA 14-01820
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


LEANNE J. WAGNER, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

WATERMAN ESTATES, LLC AND TIMOTHY WATERMAN,
DEFENDANTS-APPELLANTS.
-------------------------------------------------
WATERMAN ESTATES, LLC AND TIMOTHY WATERMAN,
THIRD-PARTY PLAINTIFFS-APPELLANTS,

                    V

JEFFREY WAGNER, THIRD-PARTY DEFENDANT-RESPONDENT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JEFFREY F.
BAASE OF COUNSEL), FOR DEFENDANTS-APPELLANTS AND THIRD-PARTY
PLAINTIFFS-APPELLANTS.

THE BALLOW LAW FIRM, P.C., WILLIAMSVILLE (THOMAS J. GRILLO, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.

BURGIO, KITA, CURVIN & BANKER, BUFFALO (WILLIAM J. KITA OF COUNSEL),
FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     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
complaint and granted the motion of third-party defendant for summary
judgment dismissing the third-party complaint.

     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 portion 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-party 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
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                                                         CA 14-01820

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 order accordingly. “The
‘commission of a tort’ doctrine permits personal liability to be
imposed on a corporate officer for misfeasance or malfeasance, 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). Plaintiff alleged that Waterman
applied salt to the step during the winter months, which contributed
to the deterioration of the concrete, thereby committing “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; see also Wesolek v Jumping Cow Enters., Inc., 51 AD3d
1376, 1378-1379).

     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
landowner 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 [internal quotation marks
omitted]; see Anderson v Weinberg, 70 AD3d 1438, 1439). As a
preliminary matter, we conclude that 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). 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 yard 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 placed 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, rearg
denied 19 NY3d 856).

     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). Waterman testified at his deposition that he painted the step
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                                                         CA 14-01820

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 step. 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 stated 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 taken 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 of fact whether Estates had actual notice of the
alleged dangerous condition.

     Plaintiff also submitted the expert affidavit of an architect
stating that the pitted condition of concrete, i.e., spalling, creates
pockets in the concrete surface, which collect water that is fed into
the body of the concrete. The expert explained that, when the water
is transformed into ice, it causes the concrete to crack under foot
traffic. He opined that “severe spalling,” as depicted in the
photographs, cracks and then crumbles. The expert opined that the
deteriorated condition of the step as depicted in the photographs
occurred over an extended period of time. We therefore further
conclude that plaintiff raised issues of fact whether Estates created
the dangerous condition by failing to repair the deteriorating
concrete (see Sniatecki, 98 AD3d at 1318), and whether Estates had
constructive notice of the dangerous condition (see Reardon v
Benderson Dev. Co., 266 AD2d 869, 870).

     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 the 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 nature.” We conclude that, inasmuch
as the lease agreement purports to exempt Estates from liability for
its own acts of negligence, it is void and unenforceable pursuant to
General Obligations Law § 5-321 (see Wagner v Ploch, 85 AD3d 1547,
1548), and thus Estates is not entitled to contractual
indemnification. Estates contends with respect to common-law
indemnification that third-party defendant is liable for the
deteriorated condition of the concrete because he applied salt to the
step. Even assuming, arguendo, that third-party defendant did so, we
conclude that Estates is not entitled to common-law indemnification.
“ ‘Since the predicate of common-law indemnity is vicarious liability
without actual fault on the part of the proposed indemnitee, it
follows that a party who has itself actually participated to some
degree in the wrongdoing cannot receive the benefit of the doctrine’ ”
                                 -4-                          546
                                                        CA 14-01820

(Great Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d
1025, 1028, lv dismissed 7 NY3d 741). “Where, as here, an owner out
of possession retains the right to reenter and make repairs to the
demised property, the owner is liable for injuries arising from a
structural . . . defect in the property” (Fischbein v 1498 Third
Realty Corp., 225 AD2d 1104, 1104), which we conclude includes the
right to repair the concrete step at issue here.

     Finally, although Estates contends that it is entitled to
contribution, it did not seek that relief in the third-party
complaint. In any event, inasmuch as third-party defendant had no
duty to Estates or plaintiff with respect to the repair of the
concrete step, we conclude that neither indemnification nor
contribution principles apply (see generally Guzman v Haven Plaza
Hous. Dev. Fund Co., 69 NY2d 559, 567-568).




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
