• NY Apartment Law
  • Fair & Affordable Housing
  • Commercial Lease Law
  • Guidebooks
  • Archives
  • Main Articles
  • Model Lease Clauses
  • Q&A
  • Dos & Don'ts
  • Recent Court Rulings
  • eAlerts
  • Log In
  • Log Out
  • My Account
  • Subscribe
  • NY Apartment Law
  • New York Apartment Law Insider
  • New York Landlord V. Tenant
  • Co-Op & Condo Case Law Digest
  • New York Rent Regulation Checklist, Fourth Edition
  • 2025 New York City Apartment Management Checklist
  • Fair & Affordable Housing
  • Fair Housing Coach
  • Assisted Housing Management Insider
  • Tax Credit Housing Management Insider
  • Fair Housing Boot Camp. Basic Training For New Hires
  • Commercial Lease Law
  • Commercial Lease Law Insider
  • Best Commercial Lease Clauses, 17/e
  • Best Commercial Lease Clauses: Tenant's Edition
  • Best Commercial Lease Clauses, 17/e
  • Best Commercial Lease Clauses, 17/e
  • Main Articles
  • Features
  • Broker's Buzz
  • Drafting Tips
  • In the News
  • Negotiating Tips
  • Plugging Loopholes
  • Traps to Avoid
  • Model Lease Clauses
  • Model Lease Clauses
  • Model Agreements
  • Other Model Tools
  • Q&A
  • Q&A
  • Pop Quiz
  • Winners & Losers
  • Ask the Insider
  • Recent Court Rulings
  • Landlord Wins
  • Landlord Loses
July 16, 2025
We use cookies to provide you with a better experience. By continuing to browse the site you are agreeing to our use of cookies in accordance with our Cookie Policy.
The Habitat Group Logo
  • NY Apartment Law
    • New York Apartment Law Insider
    • New York Landlord V. Tenant
    • Co-Op & Condo Case Law Digest
    • New York Rent Regulation Checklist, Fourth Edition
    • 2025 New York City Apartment Management Checklist
  • Fair & Affordable Housing
    • Fair Housing Coach
    • Assisted Housing Management Insider
    • Tax Credit Housing Management Insider
    • Fair Housing Boot Camp. Basic Training For New Hires
  • Commercial Lease Law
    • Commercial Lease Law Insider
    • Best Commercial Lease Clauses, 17/e
      • Best Commercial Lease Clauses, 17/e
    • Best Commercial Lease Clauses: Tenant's Edition
  • Guidebooks
  • July 16, 2025
  • Log In
  • Log Out
  • My Account
  • Subscribe
  • July 16, 2025
CLLI_logo_2020.jpg
  • Archives
  • Main Articles
    • Features
    • Broker's Buzz
    • Drafting Tips
    • In the News
    • Negotiating Tips
    • Plugging Loopholes
    • Traps to Avoid
  • Model Lease Clauses
    • Model Lease Clauses
    • Model Agreements
    • Other Model Tools
  • Q&A
    • Q&A
    • Pop Quiz
    • Winners & Losers
    • Ask the Insider
  • Dos & Don'ts
  • Recent Court Rulings
    • Landlord Wins
    • Landlord Loses
  • eAlerts
Free Issue
The Habitat Group Logo
July 16, 2025
  • Log In
  • Log Out
  • My Account
Home » Mediation Necessary to Determine Sidewalk Liability

Mediation Necessary to Determine Sidewalk Liability

May 27, 2014

Facts: A shopper tripped and fell on a two-tiered sidewalk in front of two retail stores. The sidewalk was marked with red paint to warn pedestrians about the drop-off from the upper to the lower level. Still, various employees of the tenants noted that they had witnessed pedestrians trip on the sidewalk “at least once a day.”

The shopper sued the building’s owner. The owner then cross-claimed for indemnification against both tenants, asserting that under the terms of their identical leases, they were responsible for keeping the sidewalk in good repair and safe for pedestrians and that they were required to reimburse the owner for the expenses associated with a lawsuit arising from issues with the sidewalk. The tenants both claimed that under their leases, the owner was responsible for “structural repairs,” which would have been necessary to level the sidewalk and eliminate the hazard.

The owner and tenants each asked a trial court for a judgment in its favor without a trial.

Decision: A New York court denied the owner’s and tenants' requests and ordered mediation.

Reasoning: The court noted that a judgment in a party’s favor without a trial is appropriate when there are no issues of material fact that remain to be determined. Here, there were several issues that weren’t clear-cut.

First, it was unclear whether the shopper fell in front of one of the tenants or between the tenants. There was also an issue as to whether the tenants owed a duty of care to a third party like the shopper. The court pointed out that while state law imposes a non-delegable duty on the owner to maintain and repair the sidewalk, when the tenant didn’t create the condition or make special use of the sidewalk, provisions of a lease obligating a tenant to repair the sidewalk don’t impose on the tenant a duty to a third party. There’s no evidence that the tenants created the condition of the sidewalk or made special use of the sidewalk, and their respective leases don’t give rise to a duty owed to a third person, said the court.

However, because the stores are open to the public, the tenants owe a duty to provide customers with a safe means of egress or ingress. The court said that mediation was necessary to determine whether they breached this duty, particularly in light of evidence that the tenants had noticed daily tripping incidents on the sidewalk, said the court.

It was also questionable whether the owner had breached its duty to provide a safe means of ingress and egress based on evidence that it had actual and/or constructive notice of the defect—the owner had been sued twice in the past for injuries resulting from the same sidewalk.

  • Perkins v. 85 Kenmare Realty Corp., April 2014
Owner Loses
    • Related Articles

      Trial Necessary to Determine Whether Cotenancy Clause Constituted "Liquidated Damages"

      Trial Needed to Determine Liability for Injury in Center’s Common Area

      Trial Needed to Determine Fraudulent Nondisclosure Claim

    • Publications
      • Assisted Housing Management Insider
      • Commercial Lease Law Insider
      • Co-op & Condo Case Law Tracker Digest
      • Fair Housing Coach
      • New York Apartment Law Insider
      • New York Landlord v. Tenant
      • Tax Credit Housing Management Insider
    • Additional Links
      • Contact Us
      • Advertise
      • Group Subscriptions
      • Privacy Policy
      • Terms of Use
    • Boards of Advisors
      • Assisted Housing Management Insider
      • Commercial Lease Law Insider
      • Fair Housing Coach
      • New York Apartment Law Insider
      • Tax Credit Housing Management Insider
    ©2025. All Rights Reserved. Content: The Habitat Group. CMS, Hosting & Web Development: ePublishing
    The Habitat Group Logo
    • NY Apartment Law
      • New York Apartment Law Insider
      • New York Landlord V. Tenant
      • Co-Op & Condo Case Law Digest
      • New York Rent Regulation Checklist, Fourth Edition
      • 2025 New York City Apartment Management Checklist
    • Fair & Affordable Housing
      • Fair Housing Coach
      • Assisted Housing Management Insider
      • Tax Credit Housing Management Insider
      • Fair Housing Boot Camp. Basic Training For New Hires
    • Commercial Lease Law
      • Commercial Lease Law Insider
      • Best Commercial Lease Clauses, 17/e
        • Best Commercial Lease Clauses, 17/e
      • Best Commercial Lease Clauses: Tenant's Edition
    • Guidebooks
    • July 16, 2025
    • Log In
    • Log Out
    • My Account
    • Subscribe
    • July 16, 2025
    CLLI_logo_2020.jpg
    • Archives
    • Main Articles
      • Features
      • Broker's Buzz
      • Drafting Tips
      • In the News
      • Negotiating Tips
      • Plugging Loopholes
      • Traps to Avoid
    • Model Lease Clauses
      • Model Lease Clauses
      • Model Agreements
      • Other Model Tools
    • Q&A
      • Q&A
      • Pop Quiz
      • Winners & Losers
      • Ask the Insider
    • Dos & Don'ts
    • Recent Court Rulings
      • Landlord Wins
      • Landlord Loses
    • eAlerts
    Free Issue
    The Habitat Group Logo
    July 16, 2025
    • Log In
    • Log Out
    • My Account