Opinion
April 20, 1993
Appeal from the Supreme Court, New York County (Kristin Booth Glen, J.).
The provision in the ten-year lease requiring defendant tenant to make all non-structural repairs obligated the tenant to repair the defective metal stripping, cement step patch and staircase handrail that contributed to plaintiff's fall. While the issue of apportionment of liability between the tenant and defendant landlord should have been submitted to the jury since their respective cross-claims against each other stated claims for contribution rather than contractual indemnification (see, County of Westchester v Welton Becket Assocs., 102 A.D.2d 34, 46, affd 66 N.Y.2d 642; Pellegrino v New York City Tr. Auth., 177 A.D.2d 554, 558, lv denied 80 N.Y.2d 760), the error was harmless in light of the trial court's postverdict decision of granting the landlord full indemnification against the tenant for the latter's failure to procure the insurance required by the lease. While admission of the testimony of plaintiff's architect, was competent as expert opinion (see, Portilla v Rodriguez, 179 A.D.2d 631), it should have been precluded because of plaintiff's nearly five-year delay, after the architect inspected the subject staircase, in responding to defendant's request for expert information (see, Parsons v City of New York, 175 A.D.2d 783). However, since the substance of this testimony was previously delineated in plaintiff's bill of particulars, we discern no prejudice, and on this record find the error to be harmless. We have considered defendant tenant's other arguments and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach and Kupferman, JJ.