Garcia v. Baco Enters., Inc.

Garcia v Baco Enters., Inc. 2026 NY Slip Op 05597 October 1, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Edra Garcia, Plaintiff, v Baco Enterprises, Inc., et al., Defendants. Baco Enterprises, Inc., Third-Party Plaintiff-Respondent, v Zevel Transfer LLC, Third-Party Defendant, 620 Truxton Street LLC, Third-Party Defendant-Appellant. Decided and Entered: October 01, 2026 Index No. 33790/19|Appeal No. 7105|Case No. 2025-07102| Before: Moulton, J.P., Kennedy, Friedman, Michael, Hagler, JJ. BBC Law, LLP, New York (Richard E. Leff of counsel), for appellant. Varvaro, Cotter, & Bender & Walthall, White Plains (Stephen J. Cassels of counsel), for respondent. [*1] Order, Supreme Court, Bronx County (Shawn T. Kelly, J.), entered October 6, 2025, which, to the extent appealed from as limited by the briefs, denied the motion of third-party defendant 620 Truxton Street LLC for summary judgment dismissing the third-party complaint as against it, unanimously affirmed, without costs. Supreme Court correctly found that 620 Truxton was not entitled to summary judgment dismissing the claims of defendant/third-party plaintiff Baco Enterprises, Inc., for common-law indemnification and contribution because 620 Truxton failed to establish as a matter of law that it cannot be held liable as an out-of-possession landlord (see Thomas v Triboro Maintenance Corp., 223 AD3d 582, 583 [1st Dept 2024]). The language of the lease agreement between 620 Truxton and third-party defendant Zevel Transfer LLC raises a question of fact as to whether 620 Truxton assumed certain repair and maintenance obligations for the subject premises, including the junkyard where plaintiff's accident occurred (see id. at 582-583; cf. Massaro v Manfredi Auto Cent., LLC, 248 AD3d 514, 514-515 [1st Dept 2026]). To the extent 620 Truxton briefly asserted for the first time in its reply papers that, even if it owed plaintiff a duty of care as landowner, there was no evidence to establish that any alleged breach was a proximate cause of plaintiff's injuries, this issue was not adequately presented to the motion court and is barred from consideration on appeal (see Price v Turner Constr. Co., 190 AD3d 435, 436 [1st Dept 2021]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 1, 2026