City of New York v. Kalikow Realty Co., 71 N.Y.2d 957 (1988)

A property owner who explicitly assumes responsibility for sidewalk repair and maintenance, after the city initiates repair action, must indemnify the city for damages paid to a pedestrian injured due to the owner’s failure to maintain the sidewalk, despite the city’s nondelegable duty to maintain sidewalks.

Summary

Kalikow Realty received a violation notice from the City of New York regarding a damaged sidewalk abutting its property. Kalikow responded by stating it would repair the sidewalk and maintain it safely during construction, requesting the city not to proceed with its own repairs. Two years later, a pedestrian was injured due to the broken sidewalk, and the City was found liable. The City then sought indemnification from Kalikow. The Court of Appeals held that Kalikow was obligated to indemnify the City because Kalikow explicitly assumed the responsibility to repair and maintain the sidewalk, thereby inducing the City’s forbearance from making its own repairs.

Facts

The City’s Department of Highways issued a violation notice to Kalikow Realty regarding the poor condition of the sidewalk adjacent to its property. Kalikow responded with a letter stating it had erected a fence and repaired the sidewalk to a safe condition. Kalikow further stated that it intended to begin construction within the next year and would maintain the sidewalk safely during construction, requesting the City not to conduct any repairs as they would be destroyed by construction. Approximately two years later, a pedestrian was injured due to a broken sidewalk during Kalikow’s construction project.

Procedural History

The injured pedestrian sued the City and Kalikow’s construction contractor. The City was held solely liable for breaching its statutory duty to maintain the sidewalks and paid the full judgment. The City then sued Kalikow for indemnification. Special Term granted the City’s motion for summary judgment, and the Appellate Division affirmed.

Issue(s)

Whether a property owner who explicitly assumes responsibility for sidewalk repair, inducing the City’s forbearance, must indemnify the City for damages paid to a pedestrian injured due to the owner’s failure to maintain the sidewalk, despite the City’s nondelegable duty to maintain sidewalks.

Holding

Yes, because Kalikow explicitly assumed the duty to repair and maintain the sidewalk, inducing the city to refrain from making its own repairs; therefore, Kalikow must indemnify the City for the damages paid to the injured pedestrian.

Court’s Reasoning

The Court emphasized that the decision was limited to determining which party, the City or the property owner, should ultimately bear the cost of the judgment. The Court highlighted Kalikow’s letter, in response to the City’s violation notice, which unequivocally assumed responsibility for the sidewalk’s repair and maintenance during the construction project. The Court analogized the situation to Rogers v. Dorchester Assocs., where a building owner was entitled to indemnification from a company that agreed to maintain elevator equipment. The Court distinguished the case from D’Ambrosio v. City of New York and Guzman v. Haven Plaza Hous. Dev. Fund Co., noting that in those cases, there was no explicit undertaking by the landowner to perform repairs after the city had initiated action. The court stated: “By denying a right of indemnification in the circumstances presented, the dissent would extend the law beyond any previous decision of this court, and would effectively preclude implied indemnification whenever a nondelegable duty is involved — the very situation when implied indemnification is likely most necessary.” The Court concluded that the law should give effect to the particular dealings between the City and the landowner, particularly Kalikow’s explicit undertaking to maintain the sidewalk, which induced the City’s reliance. The Court also rejected Kalikow’s argument that the City failed to present an adequate defense in the personal injury action.