
    City of New York, Respondent, v Kalikow Realty Company, Appellant.
    Argued March 23, 1988;
    decided April 28, 1988
    APPEARANCES OF COUNSEL
    
      Martin M. McGlynn for appellant.
    
      
      Peter L. Zimroth, Corporation Counsel (Margaret G. King, Edward F. X. Hart and Lucy A. Cardwell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

On June 27, 1972, the City Department of Highways placed a violation on defendant’s premises, stating that the abutting sidewalk was in need of repair. (New York City Charter former § 230 provided that if a property owner failed to cure a violation the City could then make the required repairs at the owner’s expense.) Defendant responded to the City’s notice by letter dated July 10, 1972, as follows:

"We have erected a fence and repaired the sidewalk so as to be in a safe condition. We intend to start construction at the said site within the next year and shall until then and during the entire course of construction maintain the sidewalk in a safe condition.

"Upon completion of our building the sidewalk will be completely reconstructed. We request the City of New York not to proceed with any work as outlined on the violation since such work would of necessity be destroyed at the start of construction.”

Approximately two years later, still during defendant’s construction, a pedestrian was injured when he fell on a broken sidewalk. In the subsequent personal injury action against the City and defendant’s affiliate (the construction contractor), the City alone was held liable for breach of its statutory duty to maintain the sidewalks, and it paid the full amount of the judgment to plaintiff. The City thereafter brought this action against defendant for indemnification. Special Term granted the City’s motion for summary judgment and a divided Appellate Division affirmed. We agree with the Appellate Division majority that, in the particular circumstances before us, the City should be permitted to recover from defendant the full amount of the judgment it paid to plaintiff.

It bears emphasis that the issue before us is limited to who, as between the City and this property owner, should ultimately pay plaintiffs judgment. This case in no way affects either the injured plaintiff, who has already been fully compensated by the City, or the City’s nondelegable duty to maintain its sidewalks, a duty the City concedes. Nor does our holding countenance the City’s breach, as found after trial, of its obligation to maintain its streets in safe condition, or inject any disincentive to performance of that duty. We consider only the narrow circumstances of this property owner’s explicit resistance to the City’s initiation of the repair process, coupled with an assumption of that responsibility and a request for municipal forbearance.

Defendant’s insistence now that the City must share payment of the judgment, instead of indemnifying the City in the whole amount, requires us to ignore defendant’s letter, written in response to the City’s initiation of action to repair the street by service of a violation notice under New York City Charter § 230, unequivocally assuming responsibility to repair and maintain the sidewalk in a safe condition during its construction project. Closely akin to the present situation is Rogers v Dorchester Assocs. (32 NY2d 553), in which we held that a building owner was entitled to indemnification from a company that undertook to inspect, maintain and repair elevator equipment that malfunctioned and injured plaintiff. The building owner’s nondelegable duty to maintain the premises in a safe condition — presenting the same policy considerations as the City’s nondelegable duty to maintain the sidewalks — was not a bar to indemnification by the party who had explicitly assumed that duty (id., at 563).

This case is materially different from either D’Ambrosio v City of New York (55 NY2d 454, 460) or Guzman v Haven Plaza Hous. Dev. Fund Co. (69 NY2d 559). In neither case did one party actually begin action to make certain stated repairs (as evidenced by the City’s violation notice) and in response receive the explicit undertaking of the landowner that it would do so. 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. There being no legal or policy impediment to an affirmance here, we conclude that the law sensibly should give effect to the particular dealings between the City and this landowner.

Finally, on this record we must reject defendant’s assertion that the City is barred from recovery because it failed to establish an adequate defense of the personal injury action. Defendant fails to identify any error in the findings made by Special Term, upon a review of the trial transcript, that an adequate defense was presented.

Titone, J.

(dissenting). The majority concludes that the City may invoke the common-law doctrine of indemnification to shift the entire responsibility for the pedestrian’s injuries to defendant solely because of defendant’s undertaking to maintain the sidewalk adjacent to its lot in safe condition. Further, in its effort to reconcile this ruling with the court’s recent decision in Guzman v Haven Plaza Hous. Dev. Fund Co. (69 NY2d 559), which involved a similar undertaking, the majority has seized upon the distinction it perceives in defendant’s inducing the City to refrain from making stated repairs by such an explicit undertaking (majority mem, at 959).

In my view this analysis is unsound, because it rewards the City for abdicating its municipal responsibilities on the strength of a bare promise by a private citizen to act in the City’s stead. Since recent decisions of this court, the governing statute, and public policy preclude such a result, I respectfully dissent and cast my vote for reversal.

Initially, there can be little dispute about the basic difference between common-law indemnification and the more recently recognized right of contribution, which was codified in CPLR article 14. As we have repeatedly observed, "where one joint tort-feasor 'is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent’ ” (Guzman v Haven Plaza Hous. Dev. Fund Co., supra, at 567-568, quoting D’Ambrosio v City of New York, 55 NY2d 454, 462; see, e.g., Glaser v Fortunoff of Westbury, 71 NY2d 643; Rogers v Dorchester Assocs., 32 NY2d 553, 556).

In Rogers v Dorchester Assocs. (supra), on which the majority relies, we concluded that a property owner could recover against an independent contractor who promised to maintain the owner’s elevator on a theory of implied indemnification. We stated that contribution "applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only vicariously liable [such as] the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it” (id., at 566). Thus, Rogers, at first blush, would seem to support the majority’s position.

In D’Ambrosio, however, this court abrogated the "special benefit” rule and held that the City could not seek common-law indemnification from the adjacent landowner for "trip and fall” damages resulting from a poorly maintained sidewalk appurtenance, at least in the absence of an undertaking by the property owner "to repair for the benefit of the municipality” (55 NY2d, at 463, supra). In denying the City the right to shift the entire burden of liability to the landowner, the court in D’Ambrosio observed: "If the municipality pays the damages, it is not being compelled to pay for the wrong of another; it is simply being held liable for its own failure to exercise reasonable care” (55 NY2d, at 463, supra).

The effect of a specific undertaking to repair was considered even more recently in Guzman v Haven Plaza Hous. Dev. Fund Co. (supra). In that case, we were called upon to consider whether an out-of-possession landowner held liable for injuries occurring on its premises could seek common-law indemnification from its tenant, which had covenanted to keep the premises in good repair. Despite this express and specific undertaking, we held that the landowner could not claim indemnification from the tenant since its liability was not purely derivative. Rather, the landowner’s responsibility arose from a duty it owed to the injured party: "a duty to remedy the defect, something it was permitted to do under the lease and obliged to do under the Administrative Code” (69 NY2d, at 569, supraX

Thus, the teaching of Guzman is that the mere existence of an undertaking by another to repair and maintain safe conditions is not alone a sufficient ground for permitting the party with primary responsibility to shift the entire burden of liability away from itself. In addition to the existence of such an undertaking, the court must consider whether the agreement conferred exclusive control over the premises on the promisor and totally divested the promisee of its own responsibility for the premises’ safety.

Here, as the majority acknowledges and the City concedes, New York City Charter former § 230 imposed on the City a nondelegable duty to maintain the sidewalk in a safe condition (D’Ambrosio v City of New York, supra; Russell v Village of Canastota, 98 NY 496). Under that statute, however, the City also had a duty to make certain that the property owner kept the sidewalks safe for pedestrian traffic, and a further duty to make repairs itself, in the event the property owner failed to fulfill its statutory responsibilities. Hence, its liability to the injured pedestrian was not solely derivative (cf., Riviello v Waldron, 47 NY2d 297), but rather was based on its own breach of the duty of care that it owed to the pedestrian. Thus, as in Guzman, the undertaking by a third party did not give rise to a common-law right of indemnification unless that undertaking completely divested the City of all responsibility and control.

That question obviously must be answered in the negative. To suggest that the City may be completely divested of all responsibility and control in this situation is inconsistent with the fundamental notion of government’s ultimate duty to maintain its public byways in reasonably safe condition.

Equally strong public policy objections exist in relation to the majority’s suggestion that the City should be permitted to claim indemnification because it was induced by defendant’s undertaking to refrain from making its own repairs. Further, the position the majority espouses runs counter to the policies expressed in New York City Charter former § 230 (now codified at Administrative Code of City of New York § 19-152). Under that provision, the City was authorized to direct a lot owner to construct or repair an adjacent sidewalk. If the owner failed to comply, the City was then authorized to perform the work itself and impose the cost on the lot owner. Nothing in this provision suggests that the City may, by agreement, or inducement, abdicate its responsibility for the sidewalk’s safety to the lot owner. To the contrary, the terms of the provision suggest that even where the lot owner’s parallel obligation to repair the sidewalks is invoked, the City retains an ongoing duty to supervise the lot owner’s performance and intervene in the event that such performance is inadequate.

In short, given its responsibilities as a municipality, the City simply has no right to rely on a private citizen’s promise to keep the streets in good repair. Accordingly, the fact that the defendant in this case asked the City to refrain from carrying out its duties is of no legal significance, and cannot be used by the City as a basis for shifting its liability. Even assuming that the City was lulled into inaction by the defendant’s promise, it still had a continuing duty to take reasonable affirmative steps to keep the sidewalk safe, but it apparently failed to carry out its obligation to ensure that defendant property owner was properly performing in accordance with its undertaking. Since that undertaking did not, and could not, divest the City of the duty imposed on it by law to maintain the public sidewalks in safe condition, "contribution and not common-law indemnity is the applicable rule” (Guzman v Haven Plaza Hous. Dev. Fund Corp., supra, at 569). Consequently, the City’s complaint should have been dismissed insofar as it seeks recovery under a common-law indemnification theory. Its remedy is a claim over for contribution based on apportionment of fault pursuant to Dole v Dow Chem. Co. (30 NY2d 143) and CPLR article 14.

Chief Judge Wachtler and Judges Simons, Kaye and Bellacos a concur; Judge Titone dissents and votes to reverse in an opinion in which Judges Alexander and Hancock, Jr., concur.

Order affirmed, with costs, in a memorandum. 
      
      . The landowner was "permitted to” remedy defects under a lease clause that gave it a right to reenter and make necessary repairs if the tenant failed to do so (69 NY2d, at 564; see also, id., n 2). The landowner’s statutory obligation to repair arose from Administrative Code of the City of New York § 27-128, which made the landowner responsible "at all times for the safe maintenance of the building and its facilities” (see, 69 NY2d, at 565).
     
      
      . In response to the majority’s suggestion that our dissenting position forecloses use of common-law or "implied” indemnification in cases involving nondelegable duties, we stress that our conclusion that the City cannot claim indemnification flows not from the nature of its duty to the injured plaintiff but rather from the fact that its liability to the plaintiff was not purely vicarious.
     