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Antenucci v. Sportswear

Decided: August 20, 1986.

CARMELLA ANTENUCCI, PLAINTIFF-APPELLANT,
v.
MR. NICK'S MENS SPORTSWEAR, DEFENDANT-THIRD-PARTY PLAINTIFF-RESPONDENT, AND BARNATHAN BROTHERS INC., THIRD-PARTY DEFENDANTS-RESPONDENTS. CARMELLA ANTENUCCI, PLAINTIFF-RESPONDENT, V. MR. NICK'S MENS SPORTSWEAR, DEFENDANT-THIRD-PARTY PLAINTIFF-RESPONDENT, AND BARNATHAN BROTHERS, INC., THIRD-PARTY DEFENDANT-APPELLANT, AND RICCARDO MARRERO, THIRD-PARTY DEFENDANT



On appeal from Superior Court of New Jersey, Law Division, Hudson County.

Fritz, Gaynor and Baime. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

These matters involve the asserted liability of a commercial tenant for injuries sustained by a pedestrian because of the poor condition of the sidewalk abutting the store premises, and the effect of the tenant's failure to comply with the provision in the lease requiring it to obtain liability insurance for the benefit of the landlord. As the cases have a common factual genesis we consolidate them for the purposes of this opinion and disposition.

Defendant, Mr. Nick's Mens Sportswear (Mr. Nick's) was the lessee and sole occupant of the commercial premises located at No. 6053 Bergenline Avenue, West New York, owned by the third-party defendant, Barnathan Brothers, Inc. (Barnathan).*fn1 On April 18, 1983, while plaintiff was window shopping in the early evening in front of defendant's store, her shoe became lodged in a hole in the sidewalk causing her to fall forward and

sustain physical injuries.*fn2 This action was commenced against Mr. Nick's who then sought indemnification, contribution or apportionment of the claim from the landlord and the sidewalk repairman, Ricardo Marrero (Marrero). These parties in turn cross-claimed for contribution and indemnification. Barnathan also counterclaimed against Mr. Nick's for indemnification pursuant to the lease provision requiring the lessee to obtain liability insurance naming the landlord as an insured.*fn3 Thereafter, plaintiff amended her complaint to include Barnathan and Marrero as direct defendants.

Marrero was dismissed from the case on his motion for summary judgment. Mr. Nick's then moved for summary judgment against the plaintiff and also against Barnathan on its counterclaim. Barnathan cross-moved for summary judgment against Mr. Nick's on its claim under Paragraph 28 of the lease. The motions were decided in Mr. Nick's favor resulting in Barnathan being forced to defend against plaintiff's action, which it ultimately settled for $66,500. However, before the settlement was consummated, Barnathan's insurer was declared insolvent.

The matter is now before this court on Barnathan's appeal from the denial of its motion for summary judgment on the counterclaim and the grant of Mr. Nick's motion and also on

plaintiff's appeal from the summary judgment dismissing her complaint against Mr. Nick's.

I.

In granting Mr. Nick's motion for summary dismissal of the complaint, the trial judge noted that present law does not impose upon commercial tenants the duty to repair the sidewalks abutting the leased premises. The judge agreed with the rationale of the decision in Walushen v. Maffey, 190 N.J. Super. 645 (Law Div.1983) that a commercial tenant "probably does not have the right, much less the obligation" to keep an abutting sidewalk in repair and that the doctrine of Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981) imposing such a duty upon owners of commercial property should not be extended to their tenants. We are constrained to disagree with the trial judge in this regard as, in our view, the policy considerations underlying the holding in Stewart have equal applicability in this case to a lessee who is in exclusive possession of commercial premises abutting a sidewalk.

While Stewart imposed liability upon a commercial landowner for the disrepair of the abutting sidewalk, it did not make a distinction between the owner and a tenant in exclusive possession of the commercial premises. The public policy considerations found by Stewart to require the change in the common law rule pertaining to sidewalk liability have validity whether the defendant is the owner or an exclusive occupant of the commercial property. In either case, the primary right of the public to the use of the sidewalk is the same. The resulting incentive to keep the abutting sidewalk in good repair applies to either the property owner or the lessee in exclusive possession and the harshness of the non-liability rule is ameliorated by the ...


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