Co-authored by: Uyen Nguyen, Law Clerk and Alyson L. Knipe, Esq.
In Malka Markowitz v. 420 Kent Ave. LLC, 2024 N.Y. Misc. LEXIS 8327, the Supreme Court of the State of New York, Kings County (“NY Supreme Court”) denied the property owner Defendant’s Motion to Reargue their prior arguments made in their Motion for Summary Judgment.
In the underlying facts, Plaintiff Malka Markowitz brought a personal injury action against Defendants 420 Kent Avenue, LLC., First Service Residential, Inc. (together “420 Kent”) and U.S. Rent-A-Fence (“US Fence”), alleging she sustained injuries on July 5, 2021, from tripping on the square base of a fence on 420 Kent’s property.
In June 2021, Defendants 420 Kent (property owners) contracted US Fence to rent a six-foot chain-link fence to protect against individuals expected to gather near 420 Kent’s property to watch the July 4, 2021 Independence Day fireworks. US Fence agreed to install the fence on July 2 and remove it by July 5, 2021. On July 5, 2021, while US Fence was in the process of removing the fence, Plaintiff Markowitz walked into the park adjacent to 420 Kent’s property. She then tripped on a square base of the fence and was injured as a result.
420 Kent and US Fence both moved for Summary Judgment on competing theories of indemnification. The NY Supreme Court denied both Motions for Summary Judgment as to indemnification; however, the Court did grant a branch of US Fence’s Motion on its claim for common-law indemnification, arguing that 420 Kent is liable because they failed to name US Fence as an additional insured on their policy per their agreement.
In a motion to reargue pursuant to C.P.L.R. § 2221(d), the moving party must establish that the Court has overlooked or misapprehended the relevant facts or misapplied the controlling principles of law.
In their Motion to Reargue, 420 Kent asserted that the Court had overlooked that the insurance procurement provision contained in the fence rental agreement between 420 Kent and US Fence was unenforceable as it included the following provision:
“The Customer [420 Kent] shall obtain… the forms and amounts of insurance coverage set forth in this Rental Agreement from an insurance company approved by [US Fence]. Each policy of insurance shall name [US Fence]… as additional insureds… This insurance shall, at a minimum, provide coverage in the event of death, injury, or casualty to property, whenever such shall occur, arising out of, resulting from, or related to the use of Equipment by [420 Kent].”
420 Kent argued that since the agreement did not specify the forms and amounts of coverage that 420 Kent was required to procure for US Fence, such a provision was unenforceable as the parties had not agreed on its material terms. Applying contract law principles, the Court held that the fence rental agreement unequivocally obliged 420 Kent to procure coverage in the event of injury AND name US Fence as an insured. Although 420 Kent had obtained insurance coverage, they failed to name US Fence as an insured on their policy. Accordingly, the Court found that US Fence was entitled to Summary Judgment on this issue, and 420 Kent must indemnify US Fence for any amount allowed by their insurance policy limits.
The Court also reaffirmed its denial of 420 Kent’s claims for common-law indemnity. Generally, a property owner is not vicariously liable for the negligent acts and omissions of an independent contractor hired to perform work. However, an exception applies for property owner liability when an independent contractor’s negligence creates a dangerous condition on a sidewalk or public highway. Under this exception, the property owner adjacent to a public sidewalk may be vicariously liable for independent contractor negligence unless the property owner can establish that they are free from negligence as a matter of law and did not direct, supervise, or control the construction work that led to the injury. In this case, Plaintiff was injured on that portion of Defendant’s property which is adjacent to a public sidewalk of a park. Thus, 420 Kent must also prove that they lacked constructive notice of the alleged dangerous condition caused by the fence and that US Fence’s sole negligence caused the Plaintiff’s injury.
While 420 Kent did establish that US Fence had the authority to direct, supervise, and control the fence installation and removal project, the Court held that 420 Kent failed to prove that it was free from negligence as a matter of law. Specifically, 420 Kent did not establish they lacked constructive notice of the alleged dangerous condition. In other words, a triable issue of material fact exists regarding whether the alleged dangerous condition existed for some time before the accident and whether 420 Kent had notice of the same.
New York practitioners are encouraged to review this opinion, as the denial of 420 Kent’s Motion to Reargue emphasizes that an owner of property adjacent to a public sidewalk can be found vicariously liable for dangerous conditions on their property even when the property is directly controlled or managed by a third-party contractor. Additionally, courts are likely to enforce insurance procurement provisions when it is unequivocally clear that it is the property owner’s obligation to name the contractor as an insured, even if such provisions lack specific details regarding coverage forms and amounts.
