Judge Fidel Gomez (Photo by David Handschuh/ALM)
In an action for breach of a non-delegable duty, defendants sought dismissal of the complaint, alleging the lease between the parties, which governs a commercial tenancy, precludes liability for the alleged water leak in the complaint.
The court granted defendants' motion, concluding that the lease barred liability against defendants for the water leak condition that caused damage to plaintiff's store, as the documents precluded liability against defendants arising from the very condition that was alleged in the complaint.
The court disagreed with plaintiff's argument that the provisions in the lease and rider, which precluded liability, were unenforceable under General Obligations Law §5-321 because they insulated defendants for their own negligence.
The court held that, since this was a commercial lease where plaintiff was required to purchase insurance for property damage, the parties allocated their risk through insurance so that the clauses at issue fell within the ambit of the exception to the general rule that ordinarily renders such clauses unenforceable.
Finally, the clauses precluded all liability including as to plaintiff's cause of action for the breach of the implied warranty of quiet enjoyment. The case is captioned Titumir v. Barker Ave. Estates LLC, 2022 NYLJ LEXIS 103 (N.Y. App. Div. 2022). Acting Bronx Supreme Court Justice Fidel Gomez issued the ruling.
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