New York State Supreme Court, Appellate Division, Fourth Judicial Department
Contractual obligation – Exceptions
Appealed from Supreme Court, Onondaga County
Background: The plaintiff commenced an action seeking damages after he was injured by an icicle that fell from the roof of a building, striking his head. The building was owned by the defendant and leased to the plaintiff’s employer. The defendant appealed from the denial of its summary judgment motion.
Ruling: The Appellate Division affirmed. The court held that as the plaintiff is alleging that the injury was caused either by a dereliction of the defendant’s contractual obligation to properly maintain the roof or through faulty construction and design, issues of fact were raised as to whether the roof was negligently maintained or constructed. The plaintiff submitted an expert affidavit that the ice accumulation was due to a faulty roof design and inadequate maintenance. The lease agreement upon which the defendant relies upon to demonstrate it was an out-of-possession landlord included an exception for the repair and replacement of structural elements and roof and repair and replacement work.
Richard C. Brister, of the Law Offices of Jordan Dipalma, for the defendant-appellant; Stephanie Viscelli, of Stanley Law Offices, for the plaintiff-respondent.