Opinion
No. 3969/10.
2012-07-13
Gregory MICHAELOV and Lina Michaelov, Plaintiffs, v. 632 KINGS HIGHWAY REALTY CORP., Yasheav Ami and Ifllah Ami, Defendants.
Kagan & Gertel, Esqs., Brooklyn, for Plaintiff. O'Connor Redd LLP, White Plains, for Defendant.
Kagan & Gertel, Esqs., Brooklyn, for Plaintiff. O'Connor Redd LLP, White Plains, for Defendant.
DAVID SCHMIDT, J.
The following papers numbered 1 to 5 read herein:
+---------------------------------------------------------+ ¦Papers ¦Numbered ¦ +----------------------------------------------+----------¦ ¦Notice of Motion and Affidavits (Affirmations)¦1–3 ¦ +----------------------------------------------+----------¦ ¦Opposing Affidavits (Affirmations) ¦4 ¦ +----------------------------------------------+----------¦ ¦Reply Affidavits (Affirmations) ¦5 ¦ +----------------------------------------------+----------¦ ¦Other Papers ¦ ¦ +---------------------------------------------------------+
Upon the foregoing papers, defendant 632 Kings Highway Realty Corp. (632 Kings) moves, pursuant to CPLR 3212, for summary judgment (1) dismissing plaintiffs' complaint, as well as dismissing the cross-claims of co-defendants Yasheav and Ifllah Ami (the Amis); and (2) granting summary judgment against the Amis under their contractual and common-law indemnification claims.
Factual and Procedural Background
The instant personal injury action arises out of an accident which allegedly occurred on August 18, 2009, at a premises located at 1840 East 7th Street, in Brooklyn. The premises is a commercial grocery store located within a mixed-use residential and commercial building owned by 632 Kings. Steve Leung (Leung) is the President and owner of 632 Kings. The Amis are the owners of “Ami Fruits and Grocery, Inc.,” the tenant leasing the premises from 632 Kings pursuant to a Lease agreement.
As will be discussed in greater detail below, plaintiff Gregory Michaelov was allegedly injured when a piece of glass fell upon him while he was at the premises giving the Amis an estimate for renovation work. Plaintiff testified at his examination before trial that, several days before the accident, he had finished a two-week project at the premises for the Amis. It is undisputed that, at the time the accident occurred, the Amis were in the process of replacing an air conditioning unit located above the front door of the premises. The parties offer conflicting accounts as to what caused the glass to allegedly fall on plaintiff. Plaintiff testified that the glass fell upon him while he was standing outside of the premises, facing the street. Plaintiff further testified that the accident occurred while defendant Yasheav Ami and two workers were attempting to remove the air conditioning unit with the use of a wooden two-by-four. Yasheav Ami, on the other hand, testified that the accident occurred when plaintiff, who was outside of the premises, volunteered to assist Yasheav and his workers with removing the air conditioning unit. According to Yasheav, plaintiff repeatedly struck the unit and the glass area above the unit with the two-by-four, causing the glass panel to break and fall on him, cutting his elbow.
Plaintiffs commenced the instant action by Summons and Complaint filed on February 17, 2010. Plaintiffs' first cause of action alleges that Gregory Michaelov was caused to sustain severe injuries as the result of defendants' negligence. Plaintiffs also assert a second cause of action for loss of services and affection on behalf of Gregory's spouse, Lina Michaelov.
632 Kings joined the action by service of its Verified Answer on June 3, 2010. The Verified Answer contained a cross-claim against the Amis for contractual and common-law indemnification. The Amis' attorney moved to be relieved as counsel prior to answering the Summons and Complaint; that motion was granted by order of this court dated April 11, 2011. The April 11, 2011 order directed the Amis to appear before this court on July 21, 2011. On July 21, 2011, the Amis' counsel filed a Notice of Appearance dated July 20, 2011. The Amis have not interposed an answer, nor have they asserted any cross-claims in the instant action.
Plaintiffs' Bill of Particulars alleges, among other things, that defendants allowed the area in front of the entrance to the premises to become and remain in a dangerous condition. Plaintiffs filed a Note of Issue and Certificate of Readiness for Trial on November 22, 2011.
Plaintiff's Testimony
Plaintiff testified at his examination before trial that, prior to the date of the accident, the Amis hired him to build an enclosure for a walk-in refrigerator at the premises. Plaintiff testified that it took him two weeks to install said enclosure at the premises. According to plaintiff, he completed the installation 2–3 days before the accident, and then returned to the premises with Yasheav on the date of the accident in order to provide him with an estimate for further work. Plaintiff stated that, approximately two minutes before the accident, he entered the store, looked around, and measured the floor for his proposed work. According to plaintiff, he told Yasheav that he would need to buy more materials for the proposed work, and then he walked outside. Plaintiff testified that when he entered the store, he noticed Yasheav Ami and two workers standing near the store entrance. According to plaintiff, it appeared that the men were “deciding [to do] something,” and they were looking at, and pointing to, the air conditioner. Plaintiff testified that Yahseav was holding a two-by-four piece of wood and he appeared to be using it to move the air conditioner above the front door. According to plaintiff, he did not know what Yasheav and the workers were doing to the air conditioner.
Plaintiff testified that after he exited the store, he stood approximately two feet from the front door on the sidewalk, with his hands on his hips, and his back toward the store. Plaintiff further stated that his first notice of anything unusual was when he felt the glass fall upon him. According to plaintiff, he did not hear or see the glass come down. Plaintiff testified that, immediately after the occurrence, he saw a large piece of glass on the sidewalk next to him.
Plaintiff stated that he did not know anything about the glass in the area of the air conditioner, nor was he aware of any defects in the building before the date of the accident. Plaintiff testified that he thought the glass came from the area at the top of the door, behind the roll-up gate. Plaintiff stated that an attorney who went to the site, whom he cannot identify, told him that the ceiling at the premises had two levels, and that under the ceiling, there was “a bunch of garbage inside.”
Yasheav Ami's Testimony
Yasheav Ami testified at his examination before trial that he was the owner of Ami Fruits & Grocery, Inc., which entered into a Lease and Rider with 632 Kings prior to the accident. Yasheav acknowledged his signatures on both the Lease and the Rider. Yasheav testified that the Lease term was from August 1, 2009 until July 31, 2014. Yasheav testified that when he signed the Lease, he understood that it was his responsibility to maintain the storefront and sidewalks in good working condition. Yasheav also stated that it was his responsibility to clean the glass comprising the storefront if it got dirty.
According to Yasheav, when the Amis took over the leased space, it contained tables, closets and an air conditioning unit over the front door. He stated that the air conditioning unit was approximately 3–4 feet wide, and it did not work properly because it leaked condensation. Yasheav testified that he purchased a new air conditioner to replace the existing unit approximately two weeks before the accident. According to Yasheav, Leung saw the air conditioner box on the date it was delivered, and he was aware that the Amis planned to remove the old air conditioner and install a new one. Yasheav further testified that Leung did not assist the Amis with the removal or replacement of the air conditioner. Yasheav indicated that, on the date of the accident, two workers were helping him remove the old air conditioner, which rested on an enclosure above the front door. According to Yasheav, before trying to remove the air conditioner, he looked above the door to see if the air conditioner was stuck to anything, and he did not notice any glass above the unit at that time.
Yasheav testified that plaintiff saw him and the two workers struggling with the air conditioner. Yasheav indicated that he was using a two-by-four piece of wood to manipulate the unit and, while plaintiff was standing outside the front door, plaintiff took the two-by-four out of Yasheav's hands and said “watch me do it.” At that point, Yasheav testified that plaintiff started swinging the wood like a baseball bat, striking the air conditioning unit from the outside. Yasheav testified that plaintiff was also using the wood to “leverage” the unit. According to Yasheav, plaintiff was presumably attempting to push the unit inside the store so that it could be removed from the enclosure. Yasheav stated that he was standing approximately 1–2 feet away from plaintiff when plaintiff took 5 or 6 swings at the air conditioning unit with the two-by-four. Yasheav testified that on the sixth swing, plaintiff broke a piece of glass from the front of the store and it fell on him and cut him. Yasheav indicated that there was no warning that the glass was going to fall because the accident “happened so fast.” Additionally, Yasheav stated that during the time plaintiff was hitting the unit, he did not see any glass above the unit.
According to Yasheav, the glass that fell on plaintiff was a fourteen-inch by four-inch curved piece of glass that was located above the air conditioning unit. Yasheav described the piece of glass as an extension of the glass window over the air conditioner,
and he stated that the entire panel of glass fell without leaving any pieces behind. Yasheav stated that it was “very difficult” to see the glass on top of the air conditioner, that he did not know that the glass was there prior to the accident, and that he had never replaced the glass prior to the accident. Yasheav also stated that the glass that fell was not replaced after the accident, but the air conditioner was replaced with a smaller unit, using the existing enclosure. Yasheav stated that he did not know how long the older air conditioning unit had been in its position above the door.
Plaintiff testified that there was an awning attached to the storefront, and also a roll-down gate behind the awning. According to plaintiff, before the time the rolling gate was added and the awning was installed, the subject piece of glass might have formed a part of the storefront for a prior business.
Furthermore, Yasheav testified that Leung “passed by” the store every day to “say hello” and “see what was going on.” Yasheav indicated that Leung lived in an apartment upstairs. Yasheav stated that Leung spoke with him about “really small stuff,” but did not help him renovate the store or “undertake to do any work in the store for [him].” Yasheav testified that Leung did not tell him how to do any of the things he was doing in the store (including painting, removing the old air conditioning unit, and installing the new air conditioning unit). Yasheav also testified that Leung did not loan him any tools prior to plaintiff's accident. According to Yahseav, Leung was not present at the premises on the date of the accident, nor did he hire plaintiff or the two men working on site on the date of the accident.
Steven Leung's Affidavit
The court notes that an unsigned affidavit was attached along with an identical executed affidavit, which is difficult to read in various sections.
In his affidavit submitted on behalf of 632 Kings, Steven Leung (Leung) stated that he was the President and owner of 632 Kings prior to plaintiff's accident. Leung further stated that 632 Kings owned the building which housed the premises, as well as four other commercial ground floor units and eight residential units on the second and third floors. Leung stated that he resided in one of the residential units, and the rest of the building was rented out to various tenants.
According to Leung, on or about August 1, 2009, he rented the premises to the Amis, to be utilized by them for the operation of their fruit and vegetable store, pursuant to the terms of the Lease and Rider. Leung stated that he executed both the Lease and the Rider. According to Leung, pursuant to the terms of the Lease, the Amis were responsible for the repair and maintenance of the premises. Leung also stated that, prior to signing the Lease, he told plaintiff that the tenant would be responsible for everything, including modifications of the leased unit.
Leung indicated that the tenant that occupied the premises for two years prior to the Amis was “Sound Mobile Phones.” Leung asserted that, in June of 2009, before the Amis moved in, he helped Sound Mobile Phones clean out the premises. Leung stated that he removed debris and mobile phone equipment, but did not touch or operate the air conditioner at the front of the store. Leung further stated that from the time it purchased the building, 632 Kings never made any repairs or structural changes to the premises. Leung also testified that 632 Kings did not install or remove the air conditioner at the premises at any time prior to the date of plaintiff's accident. According to Leung, when the Amis moved in, they installed various fixtures, including shelving and a refrigeration unit. Leung testified that 632 Kings was not involved with the installation of these fixtures.
Moreover, Leung stated that, prior to Sound Mobile Phones, the tenant that occupied the premises was “Prestige Watch Outlet.” Leung testified that Prestige Watch Outlet installed a security gate at the premises, and that this gate stayed in place after Prestige Watch Outlet left the premises. According to Leung, the owners of Prestige Watch Outlet gave him the key for the gate, which he then gave to subsequent tenants that rented the premises. Leung asserts that, in 2003 or 2004, Prestige Watch Outlet moved the air conditioner from the back of the store to the front of the store over the front door. Leung stated that another former tenant, a clothing outlet store, installed the air conditioner in the back of the store twenty years ago. According to Leung, 632 Kings was not involved in moving or installing the air conditioner at the premises.
Furthermore, Leung asserted that, a few days after the Amis moved into the premises, he stopped in to see what they had accomplished in setting up their store, but did not speak to the Amis at that time.
Leung stated that he did not tell the Amis how to set up or install the fixtures and equipment needed to operate their grocery store. Leung insisted that he was no way involved in the operation of the Amis' grocery store. Leung also stated that he did not loan plaintiff any tools prior to the accident. Leung indicated that he lived in the same building as the premises and passed by the premises every day. According to Leung, when he passed by, he went in “every once in awhile,” but did not normally go in the premises, because he “[had] no business to go inside.” According to Leung, he was not present at the premises on the date of the accident.
Leung stated that he went into the store to check the shelving the Amis were installing, to “see if they do it right.” According to Leung, the Amis did not do anything wrong, so he did not tell them anything. Leung stated that he thought it was his duty to make sure that “all that stuff was put in correctly.” Leung further stated that he did not feel that it was his right to go in to make sure that things were put in correctly; specifically, he stated that “[n]o, it's not my right, but I just wanted to see if they did it right.” Leung explained that if the Amis “let me go in, I go in. If they don't let me in, I stay out.” Additionally, if he had seen something wrong at the premises, Leung testified that “[i]f [the Amis] believe it, they would fix it. If they don't believe it, it's their responsibility.” According to Leung, he never went in and told the Amis to fix anything, but he stated that he would give them his opinion if he thought something was wrong.
Leung testified that during construction, and after the lease was signed, he heard Yasheav Ami's father say that the air conditioner at the premises was not strong enough for the store. Leung stated that he was standing on the street outside of the premises, where the garbage is located, when he heard the aforementioned statement about the air conditioner. Leung stated that Yasheav never said anything to him about the air conditioning unit prior to the accident, and he did not see the box for the air conditioner on the sidewalk prior to the accident. Additionally, Leung stated in his affidavit that he was not aware of any glass or materials above the air conditioner, nor did he receive any complaints about any glass or materials being stored above the air conditioner.
The Lease
Leung submits a copy of the “Standard Form of Store Lease” (the Lease) entered into between the Amis and Ami Fruit & Grocery, as “Tenant,” and 632 Kings, as “Owner.”
With respect to “Alterations,” the Lease provides, in Paragraph 3 as follows:
“Tenant shall make no changes in or to the demised premises of any nature without Owner's prior written consent. Subject to the prior written consent of Owner, and to the provisions of this article, Tenant, at Tenant's expense, may make alterations, installations, additions or improvements which are non-structural and which do not affect utility services or plumbing and electrical lines, in or to the interior of the demised premises by using contractors or mechanics first approved in each instance by Owner ... All fixtures and all paneling, partitions, railings and like installations, installed in the demised premises installed in the demised premises at any time, either by Tenant or by Owner on Tenant's behalf, shall, upon installation, become the property of Owner and shall remain upon and be surrendered with the demised premises unless Owner, by notice to Tenant no later than twenty days prior to the date fixed as the termination of this lease, elects to relinquish Owner's rights thereto and to have them removed by Tenant, in which event, the same shall be removed from the demised premises by Tenant prior to the expiration of the lease, at Tenant's expense. Nothing in this article shall be construed to give Owner title to, or to prevent Tenant's removal of, trade fixtures, moveable office furniture and equipment, but upon removal of same from the demised premises or upon removal of other installations as may be required by Owner, Tenant shall immediately and at its expense, repair and restore the demised premises to the condition existing prior to any such installations, and repair any damage to the demised premises or to the building due to such removal.”
Paragraph 4 of the Lease, entitled “Repairs” provides that:
“Tenant shall, throughout the term of the lease, take good care of the demised premises (including, without limitation, the storefront) and the fixtures and appurtenances therein, and the sidewalks adjacent thereto, and at its sole cost and expense, make all non-structural repairs thereto and when needed to preserve them in good working order and condition, reasonable wear and tear, obsolescence and damage from the elements, fire or other casualty, excepted.”
Furthermore, Paragraph 4 states that the “Owner shall maintain and repair the public portions of the building, both exterior and interior ...”
Additionally, Paragraph 13, entitled “Access to Premises,” provides for the Owner's right of entry into the premises as follows:
“Owner or Owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs, replacements, and improvements as Owner may deem necessary and reasonably desirable to any portion of the building or which Owner may elect to perform, in the demised premises, following Tenant's failure to make repairs or perform any work which Tenant is obligated to perform under this lease, or for the purpose of complying with laws, regulations and other decisions of governmental authorities.”
Paragraph 8, titled “Tenant's Liability Insurance, Property Loss, Damage, Indemnity,” provides as follows regarding the Owner's liability for personal injuries sustained at the premises and the Tenant's obligation to indemnify Owner for such liability:
“Owner or its agents shall not be liable for any damage to property of Tenant or of others entrusted to employees of the building, nor for loss of, or damage to, any property of Tenant by theft of otherwise, nor for any injury or damage to persons or property resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees. Owner or its agents will not be liable for any such damage caused by other tenants or persons in, upon or about said building, or caused by operations in construction of any private, public or any quasi public work. Tenant agrees, at Tenant's sole cost and expense, to maintain commercial general liability insurance in standard form in favor of Owner and Tenant against claims for bodily injury or death or property damage occurring in or upon the demised premises, effective from the date Tenant enters into possession of the demised premises and during the term of this lease ... Tenant shall indemnify and hold harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which Owner shall not be reimbursed by insurance, including reasonable attorneys' fees paid, suffered, or incurred as a result of any breach by Tenant, Tenant's agent, contractors, employees, invitees, or licensees, of any covenant on condition of this lease or by the carelessness, negligence or improper conduct of the Tenant, Tenant's agents, contractors, employees, invitees, or licensees. Tenant's ability under this lease extends to the acts and omissions of any subtenant. In case any action or proceeding is brought against Owner by reason of any such claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist or defend such action or proceeding by counsel approved by Owner in writing, such approval not to be unreasonably withheld.”
The Rider
632 Kings also submits a copy of the “RIDER TO LEASE DATED AUGUST 1, 2009, BETWEEN 632 KINGS HIGHWAY REALTY CORP., LANDLORD AND YASNAUE [sic], TENANT, For the term August 1, 2009 to July 31, 20014[sic]” (the Rider),
which states in Paragraph 43 that:
The Rider contains the signatures of Leung, as the “Landlord,” and Yasheav Ami, as the “Tenant.” The Rider initially states that, “[a]nything to the contrary notwithstanding, the parties hereby covenant and agree as follow[s],” and it consists of 9 paragraphs numbered 40–48.
“The tenant shall carry liability insurance in the sum of at least $50,000. for each claim and $100,000. In respect to any one accident, which insurance shall indemnify the landlord against all claims for personal injuries resulting from the occupancy and use of the premises by the tenant or other persons lawfully of the premises during the term of this lease and the tenant shall furnish the landlord either a copy of the aforesaid plate glass and liability insurance policies not later than thirty (30) days from the commencement of this lease, and tenant shall continue such policies in full force and effect until the termination of this lease ...”
Paragraph 46 of the Rider further provides that:
“Tenant undertakes, covenants, agrees and warrants that it will and does hereby indemnify and agree to hold the Owner, its principals, successors and assigns, harmless from and against any and all claims, liability, loss, cost, expense, damage, or monetary expenditure or obligation whatever, whether for injury to persons, loss of life, or damage to property, arising out of or connected with any use or occupancy of the demised premises by the Tenant, and from the sidewalks and/or curbs appurtenant thereto, during the entire term of this lease and an insurance covering any and all persons and employees in any degree and in any capacity engaged or to be engaged on the job or in the performance of the work, together with a receipts bill showing that the full premium for such Worker's Compensation Insurance has been paid for in advance.”
The Parties' Contentions
632 Kings ' Motion
632 Kings argues that it cannot be held liable because it did not have actual or constructive notice of the alleged defective condition. According to 632 Kings, despite the conflicting versions of the accident, the court must construe the plaintiffs' story in the light most favorable to him; namely, that he was standing on the sidewalk facing the street, when the glass above the air conditioning unit somehow fell while Yasheav and his two workers were attempting to remove the air conditioner from its enclosure. 632 Kings alleges that plaintiff's first notice of the alleged defective condition was when he heard the glass fall upon him. 632 Kings further points out that, prior to his accident, plaintiff was not aware of any glass above the air conditioner or of any complaint concerning same. According to 632 Kings, plaintiff had been working at the premises for two weeks prior to his accident, and he admitted that he did not know about the glass in the area above the air conditioning unit, or of any defects in the building, before the date of the accident. As a result, 632 Kings avers that plaintiff cannot testify whether defendants knew, or should have known, about the glass above the air conditioner unit before the date of the accident.
Similarly, 632 Kings alleges that there is no evidence that the tenant, Ami, was aware of the alleged dangerous condition of the glass before the date of the accident. In that regard, 632 Kings contends that the alleged defective condition of the glass was not easily observable, as it was located above the air conditioner. 632 Kings cites Ami's testimony that it was “very difficult” to see the glass on top of the air conditioner. 632 Kings also notes Ami's testimony that, on the date of the accident, he looked above the air conditioner before he attempted to remove it, and he did not see any glass at that time. Consequently, 632 Kings argues that it is undisputed that Ami was not aware of the glass above the air conditioner, even after inspecting the area on the date of the accident.
Additionally, 632 Kings avers that there is no evidence that it knew or should have known of the existence of the glass above the air conditioner, based upon Leung's statements in his affidavit that he was not aware of any materials above the subject air conditioner. 632 Kings also points out that Leung did not receive any complaints regarding any glass or materials stored above the air conditioner. In addition, according to 632 Kings, Leung stated that he had no involvement with Prestige Watch Outlets' move of the air conditioning unit from the back of the premises to the front of the premises.
632 Kings avers that, because there is no evidence that anyone knew or should have known of the condition of the glass above the air conditioner prior to plaintiff's accident, plaintiff will not be able to establish actual or constructive notice of same.
Moreover, 632 Kings argues that it cannot be held liable in the instant action because of its status as an out-of-possession landlord. According to 632 Kings, the Lease provided that that 632 Kings would be responsible for the common areas of the building, while the Amis would be responsible for the premises, including the storefront and the fixtures and appurtenances therein, as well as the sidewalk adjacent thereto, and all non-structural repairs. 632 Kings contends that there is no testimony by Ami that 632 Kings was involved in the operation, maintenance or repair of the store once it was occupied by Ami. 632 Kings notes that while Ami recalled Leung passing by the store, Leung did not help him renovate the store, nor was Leung present at the time of the accident. 632 Kings also points out that Leung did not hire plaintiff or the other workers on site on the date of the accident. Furthermore, 632 Kings cites Leung's testimony that 632 Kings did not make any repairs or structural changes to the premises, including to the air conditioning unit, at any time prior to the date of the accident. According to 632 Kings, when the Amis moved in, they installed various fixtures, including shelving and a refrigeration unit, and 632 Kings was not invovled in said installation. 632 Kings denies that it advised the Amis as to how they should set up or install the fixtures and equipment needed to operate their grocery store at the premises, nor was he in any way involved with the actual operation of the store.
As such, 632 Kings asserts that there is no evidence that it controlled the presmies or that the Lease required same. According to 632 Kings, the fact that the Lease provides for a right of re-entry is a non-issue here, since plaintiff has not alleged that a specific statutory violation exists, nor is there evidence of a significant structural or design defect.
Finally, 632 Kings argues that it is entitled to contractual and common-law indemnity from the Amis because the terms of the Lease evidence a clear intention to have the tenant indemnify the landlord for claims resulting from the tenant's negligence. According to 632 Kings, the subject indemnification is enforceable because it does not violate General Obligations Law § 5–321. According to 632 Kings, the Amis controlled the work being done at the premises. 632 Kings contends that there is no evidence attributing the accident to 632 Kings' negligence and, thus, that it is owed contractual indemnification from the Amis pursuant to the terms of the Lease. According to 632 Kings, the evidence is undisputed that the accident resulted from the Amis work on the date of the accident. Therefore, 632 Kings avers that contractual indemnification, including defense costs, is warranted. For the same reasons set forth above demonstrating 632 Kings' lack of fault in the instant matter, 632 Kings also argues that it is entitled to common-law indemnification from the Amis.
Plaintiffs' Opposition
In opposition, plaintiffs argue that 632 Kings' motion should be denied because there are issues of fact regarding both 632 Kings' control of the premises and its notice of the alleged dangerous condition. According to plaintiffs, the Court of Appeals' recent decision in Gronski v. County of Monroe, (18 NY3d 374 [2011] ) “fundamenally reformulated the legal principles applicable to determining whether a lessor maintains control' of [the] leased premises.” Plaintiffs allege that, in Gronski, the Court of Appeals held that the lessor must show not only that it relinquished control of the premises, but that it “relinquished complete control' of those premises, because the lessor, as landowner, remains in presumptive control over its property subject to the attendant obligations of ownership until it is found that control was relinquished, either as a matter of law or by a fact finder after presentation of all the evidence.' “ Plaintiffs contend that where the lessor has shown that it relinquished control, but not absolute control, to the lessee, the lessor's motion must be denied.
Here, plaintiffs argue that 632 Kings has failed to make the requisite showing of an absolute or a complete relinquishment of control. According to plaintiffs, 632 Kings failed to show that it had no involvement of any sort with actual or proposed repairs to the leased premises. Plaintiffs further argue that, because the Lease provides for a right of re-entry, 632 Kings cannot prove that it relinquished complete control of the premises. Moreover, plaintiffs assert that the absence of relinquishment of complete control here is conclusively shown by 632 Kings' actual course of conduct. Plaintiffs aver that the testimony of Leung and the Amis established that Leung “assisted the tenant in tidying up, disposing of and removing debris from the store, after the lessee took possession.” Plaintiffs also note that Leung lives in the same building as the premises, and he testified that he passes by the premises every day. Moreover, plaintiffs allege that Leung testified that it was his “right” to enter the premises to see what the lessee was doing, and that he felt free to object to the work being done there. Rather than relinquish complete control of the premises to the Amis, plaintiffs argue that Leung retained for himself the right to re-enter the leased premises to effect repairs and to make sure that the work was being done “properly.”
According to plaintiffs, Leung not only retained these rights, but he actively exercised them, as is apparent from Yasheav's testimony that Leung “gave [him] some advise [and] always gives me some advise, so [he] always helps me out [and] sometimes, he gives me tools, tools to borrow.” Plaintffs further cite Yasheav's testimony that Leung “was always there, every day” and that, when Leung entered the premises, he gave Yasheav pointers and suggestions for things that should be done in the premises.
Plaintiffs argue that, at the very least, there is an issue of fact regarding whether the 632 Kings ceded complete and absolute control of the premises to the Amis. According to plaintiffs, as in Gronski, 632 Kings maintained a “visible and vocal presence at the premises, entering virtually every day and providing advice, tools, and suggestions to the lessee.” Plaintiffs further compare the instant case to Gronski in that “the lease granted the landlord the right of re-entry, both in its explicit terms and as the landlord interpreted its provisions.” Finally, plaintiffs contend that, similar to the facts of Gronski, 632 Kings' principal, Leung, “offered specific examples of circumstances in which he not only would, but in which he in fact did, take action if he observed what he believed was an unsafe condition.”
With respect to notice of the alleged dangerous condition that caused the accident at the premises (the existence of a pane of glass that was hidden by an air conditioner that was in the process of being moved at the time of the accident), plaintiffs argue that, at best, 632 Kings may have shown a lack of actual notice of the condition. According to plaintiffs, 632 Kings failed to show the absence of constructive notice of the dangerous condition, “a pane of glass that was present for a great many years and was not visible to persons below and which fell when it was dislodged in the course of renovating an old air conditioner and installing a new one.” Plaintiffs contend that where a hidden or latent defect is present, and then that defect causes injury, constructive notice will be deemed to exist because the owner has the duty to maintain its premises in a safe condition. Plaintiffs claim that notice in such circumstances may be proved by evidence of the long-continued existence of the latent condition.
Plaintiff notes Leung's testimony that the air conditioner had originally been located at the back of the premises, but was moved to the front of the premises by a prior tenant 5 or 6 years before the Amis leased the premises. Plaintiff also notes that, according to Leung's testimony, the air conditioner was originally installed in the rear of the store approximately ten to twenty years before the Amis leased the premises. According to plaintiff, although Leung testified that he did not know about the removal and replacement of the air conditioning unit by the Amis, Yashaev testified that Leung was present at that time, and he knew that a new air conditioner was being installed. Plaintiff also notes Yashaev's testimony that some of the logistics of the replacement were discussed with Leung prior to the accident. Plaintiff alleges that Yashaev also testified that he did not know about the hidden glass above the air conditioner.
According to plaintiffs, in the absence of proof by 632 Kings that it had a lack of constructive notice, plaintiffs have no duty to make any affirmative presentation with respect to notice. Plaintiffs assert that Leung agreed that he cleaned the premises after each tenant vacated the unit, and observed the premises to make sure that they were safe for the next tenant. Moreover, plaintiffs allege that Leung admitted that he inspected the premises periodically while the tenants were in possession. Accordingly, plaintiffs argue that it cannot be said that 632 Kings made the requisite showing of a lack of constructive notice of the presence of the dangerous condition that allegedly caused plaintiff's injuries.
632 Kings' Reply
In reply, 632 Kings argues that plaintiffs mis-state the holding in Gronski. According to 632 Kings, the unique facts of Gronski do not present in a new requirement that a landlord is entitled to out-of-possession status only if it relinquished “complete” or “absolute” control of the leased premises. 632 Kings avers that the standard remains the same, that an out-of-possession owner or lessor is not liable for injuries that occur on its premises unless it has retained control over the premises or is contractually obligated to repair unsafe conditions.
Furthermore, 632 Kings maintains that Leung's conduct does not establish that he controlled the operations of the Amis' grocery store. According to 632 Kings, plaintiffs mis-characterize Leung's testimony regarding his conduct in cleaning the premises after prior tenancies. 632 Kings also alleges that plaintiffs mis-characterize Leung's testimony stating that he “passed by” the store every day. 632 Kings contends that, as reflected in Leung's testimony, he passed by the store every day because he lived above the premises, not because he controlled the storefront that he leased to the Amis. 632 Kings insists that it relinquished control of the premises in the Lease, and was not contractually obligated to make repairs at the premises. According to 632 Kings, the fact that Leung passed by the store and observed part of the Amis' renovation work, without directing or participating in same, does not establish control of the premises. Furthermore, 632 Kings contends that plaintiff testified that he was unsure as to whether Leung gave him advice about store renovations.
Unlike the owner in Gronski, 632 Kings asserts that it did not have a visible and vocal presence inside the Amis' grocery store. 632 Kings notes that Leung did not provide tools for use inside the store, and he did not advise the Amis regarding the alleged defective condition of the glass. Moreover, unlike in Gronski, 632 Kings claims that Leung did not enter the store every day. As such, 632 Kings insists that it did not retain the requisite degree of control over the premises to warrant denial of its status as an out-of-possession landlord.
Moreover, 632 Kings maintains that it did not have actual or constructive notice of the alleged hidden glass at the premises. 632 Kings contends that plaintiff offers only speculation that the glass had been placed on top of the air conditioner when the unit was moved to the front of the store in 2003 or 2004. According to 632 Kings, there is no evidence that the glass had been placed there at that time, or at any other time. 632 Kings contends that the hidden glass was not open or obvious, and 632 Kings had no duty to warn the tenant about the latent defect of the glass. 632 Kings avers that the glass was so well hidden that even the tenant could not see it when he looked above the air conditioner on the date of the accident. According to 632 Kings, it cannot be charged with constructive notice of a hidden condition where there is no evidence as to how long the condition existed prior to the date of the accident. 632 Kings points out that Leung stated that he was not aware of any glass or materials above the air conditioner at any time prior to the accident, and he had received no complaints regarding same. 632 Kings insists that there is no evidence that it knew or should have known of the alleged defective condition of the glass prior to the date of the accident.
Discussion
Summary Judgment Standard
It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact ( see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985] ). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact which require a trial of action (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980];Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986] ). It is well established that a defendant seeking summary judgment bears the burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than merely by pointing out gaps in the plaintiff's case ( see Nationwide Prop. Cas. v. Nestor, 6 AD3d 409, 410 [2d Dept 2004] ). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers. Indeed, when a party moving for summary judgment fails to meet its burden of establishing its prima facie entitlement to judgment as matter of law, the sufficiency of the opposing papers need not be considered ( see Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455 [2006];JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373 [2005];Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985];Hughes v. Cai, 31 AD3d 385 [2006] ).
Further, “[t]he court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues' “ (Ruiz v. Griffin, 71 AD3d 1112 [2010],quoting Lopez v. Beltre, 59 AD3d 683, 685 [2009] ). Thus, “[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility' “ (Ruiz, 71 AD3d at 1112,quoting Scott v. Long Is. Power Auth., 294 A.D.2d 348 [2002] ).
Moreover, “[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law” (Chahales v. Garber, 195 A.D.2d 585, 586 [1993] ). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her initial burden of proof and the nonmovant's opposition to the motion for summary judgment is “entirely conjectural and there is no genuine issue [of fact] to be resolved” (Cassidy v. Valenti, 211 A.D.2d 876, 877 [1995] ). Also, the motion court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to opponents ( see Marshall v. Vilar, 303 A.D.2d 466 [2003] ).
632 Kings' Request for Dismissal of the Complaint
Out of Possession Landlord Defense
“Generally, an out-of-possession landlord is not liable for injuries sustained at the leased premises unless it has retained control over the premises or is contractually obligated to repair unsafe conditions” (Rhian v. PABR Assocs., Inc., 38 AD3d 637, 637–638 [2007] ).
(a) Contractual Obligation to Repair Unsafe Conditions
Here, it is undisputed that 632 Kings was an out-of-possession landlord and the Amis were tenants in possession of the subject premises. Plaintiff's accident allegedly occurred as the result of glass falling from the area above the air conditioning unit onto plaintiff, who was standing on the sidewalk in front of the premises. Defendants assert that, pursuant to the Lease, the Amis were responsible for all non-structural repairs, and for maintaining the air-conditioning unit, the storefront, and the sidewalk adjacent to the premises. Specifically, Paragraph Four of the Lease required the Amis to “take good care of the demised premises (including, without limitation, the storefront) and the fixtures and appurtenances therein, and the sidewalks adjacent thereto, and at its sole cost and expense, make all non-structural repairs thereto and when needed to preserve them in good working order and condition .” Paragraph Four also states that the “Owner shall maintain and repair the public portions of the building, both exterior and interior ...” 632 Kings has established that, pursuant to the Lease, its was not contractually obligated to make non-structural repairs or to maintain the area of premises where plaintiff's accident occurred. Plaintiffs fail to raise an issue of fact in response to 632 Kings' prima facie showing.
(b) Contractual Right of Entry
Furthermore, plaintiffs also fail to raise an issue of fact by asserting that 632 Kings controlled the premises because it reserved the right to enter the premises. Paragraph 13 of the Lease permitted 632 Kings to access to the premises for the purpose of making emergent repairs or repairs that the tenant refused or neglected to perform. However, the mere “[r]eservation of a right of entry for inspection and repair may constitute sufficient retention of control to impose liability for injuries caused by a dangerous condition ... only where liability is based on a significant structural or design defect that violates a specific statutory provision” (Seney, 15 AD3d at 384;see also Tragale v. 485 Kings Corp., 39 AD3d 626, 627 [2007];Ingargiola v. Waheguru Mgt., 5 AD3d 732, 733–734 [2004];Dominguez v. Food City Mkts., 303 A.D.2d 618, 619 [2003] ). A structural defect is one where the defect violates a statute rather than a regulation ( see Guzman v. Haven Plaza Housing Development Fund Company, Inc., 69 N.Y.2d 559 [1987] ). General maintenance of a premises and a failure stemming therefrom, is not akin to a structural defect (Manning v. New York Telephone Company, 157 A.D.2d 264 [1990] ). In the absence of a statutory duty, a landlord's mere reservation of a right to enter leased premises to make repairs is insufficient to give rise to liability for a subsequently arising dangerous condition ( see Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559).
Here, plaintiffs have not alleged a violation of any specific statutory provision applicable to 632 Kings. Additionally, plaintiffs fail to allege that the falling glass was the result of a significant structural or design defect. Even though the Lease allowed 632 Kings to make necessary repairs on an emergent basis, or if the Amis failed to do so as required under the Lease, plaintiff has alleged no violation of any statutory requirement relating to the falling glass that could serve as a basis for 632 Kings' liability. Under these circumstances, 632 Kings' contractual allowances were not sufficient to create an obligation to provide maintenance and repair measures to protect the Amis' invitees or employees from defective or dangerous conditions at the premises.
(c) Actual Control of the Premises
Additionally, 632 Kings has presented prima facie evidence that it did not control the premises, nor did it assume a course of conduct demonstrating a responsibility to repair or maintain the premises ( see generally Cherubini v. Testa, 130 A.D.2d 380 [1987];Reidy v. Burger King Corporation, 250 A.D.2d 747 [1998] ). 632 Kings proffers evidence, in the form of Leung's affidavit and testimony, that 632 Kings was not involved with the operation of the premises, nor was it involved in the installation or removal of the subject air conditioning unit. 632 Kings established that no actions were taken by or on behalf of 632 Kings regarding the maintenance or repair of the subject premises.
Plaintiffs fail to raise an issue of fact regarding 632 Kings' alleged control of maintenance or repairs at the premises. The record is devoid of any evidence that 632 Kings controlled the premises by making repairs, performing maintenance, or installing equipment therein. Yashaev's testimony that Leung visited the premises to make sure that the Amis were “doing it right,” in reference to renovations, is insufficient to raise an issue of fact as to 632 Kings' control of the premises. Leung testified that he occasionally visited the premises to check on the Amis' renovations, however, there is no evidence that he actually controlled or undertook any such repairs. Leung testified that he lived at the premises, and that he often passed by the work site. However, there is no evidence that Leung actually visited the premises on a regular basis for the purpose of controlling maintenance or repairs. There is also no evidence that Leung gave the Amis tools for repairs at the premises, or that he instructed the Amis regarding repairs at the premises. According to Leung, he “just wanted to see if they did it right.” Moreover, Leung testified that “If [the Amis] let me go in, I go in. If they don't let me in, I stay out.” Despite plaintiff's conclusory claims to the contrary, there is no evidence that 632 Kings assumed a responsibility to maintain or repair the property through a course of conduct ( see generally Del Giacco v. Noteworthy Co., 175 A.D.2d 516, 518). The court finds that Gronski does not mandate a contrary result, since there is no evidence that 632 Kings was involved with maintenance or repairs at the premises.
Landowner's Duty to Maintain the Property in a Reasonably Safe Condition
Furthermore, it is well-settled that “[a] landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances including the likelihood of injury to others, the seriousness of the potential injury, and the burden of avoiding the risk” (Basso v. Miller, 40 N.Y.2d 233, 241 [1976] [internal quotation marks and citation omitted] ). To prevail on a cause of action for personal injuries due to a dangerous condition on the property, a plaintiff must establish that the defendant owner was responsible for the allegedly dangerous condition, either because it created the condition which caused the accident or because it had actual or constructive notice of the condition ( see Richardson v. Campanelli, 297 A.D.2d 794 [2002];see also Torres v. West St. Realty Co., 21 AD3d 718, 722 [2005] ).
(a) Creation of the Alleged Dangerous Condition
632 Kings has established, prima facie, that it did not create the allegedly dangerous condition of the falling glass that caused plaintiff's injuries. 632 Kings presented evidence that the subject air conditioning unit was installed, moved, and then reinstalled by former tenants at the premises. Additionally, 632 Kings presented evidence that it did not assist the Amis in removing the air conditioner on the date of the accident. Defendant presented testimonial evidence that, at no time prior to plaintiff's accident, did 632 Kings maintain or repair the premises, including the air conditioner or the area above the air conditioner where the glass was allegedly located. Further, 632 Kings demonstrated that it was not aware of any glass above the unit prior to plaintiff's accident, nor did it maintain or replace any glass above the air conditioning unit prior to plaintiff's accident.
In response to 632 Kings' prima facie showing, plaintiffs fail to raise an issue of fact. There is no evidence that 632 Kings created the unsafe condition alleged ( see generally Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 [1986];Ortega v. New York City Transit Authority, 262 A.D.2d 470 [1999] ).
(b) Actual Notice of the Alleged Dangerous Condition
632 Kings also asserts that it did not have actual notice of the alleged defective condition of the glass above the air conditioning unit, based upon Leung's claims that he never saw the glass when he visited the premises, never inspected the air conditioning unit or the area above the unit, nor was he involved in repairs or the operation of the grocery store at the premises. 632 Kings further alleges that it was not aware of any complaints made to 632 Kings concerning the unsafe condition alleged. The court finds that 632 Kings has demonstrated, prima facie, that it did not have actual notice of the alleged dangerous condition of the glass above the air conditioning unit at the premises.
In response, plaintiffs fail to raise an issue of fact as to 632 Kings' actual notice of the alleged defective condition of the glass above the air conditioning unit. There is no evidence that 632 Kings was advised of the defect or that it gained actual knowledge of the unsafe condition alleged ( see generally Gordon, 67 N.Y.2d at 837;Ortega v. New York City Transit Authority, 262 A.D.2d 470 [1999] ).
(c) Constructive Notice
“To prove constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Kramer v. SBT & C, 62 AD3d 667, 669 [2009],quoting Gordon v. American Museum of Natural Museum of Natural History, 67 N.Y.2d 836, 837 [1986] ). The notice required must be more than general notice of any defective condition (Gordon, 67 N.Y.2d 836). The law requires notice fo the specific condition alleged at the specific location alleged ( see Gordon, 67 N.Y.2d 836).
“A person is chargeable with constructive notice of any fact which would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts and he or she avoids such inquiry” (Majer v. Schmidt, 169 A.D.2d 501, 503 [1991] ). But, “[w]hen a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice will not be imputed” (Applegate v. Long Island Power Auth., 53 AD3d 515, 516 [2008] ). Further, the absence of evidence demonstrating how long a condition existed prior to plaintiff's accident constitutes a failure to establish the existence of constructive notice as a matter of law ( see Anderson v. Central Valley Realty Company, 300 A.D.2d 422 [2002][plaintiff's inability to state how long the puddle which allegedly caused her to fall existed prior to her fall was insufficient to establish that defendants had constructive notice of the same] ).
632 Kings made a prima facie showing that it did not have constructive notice of the allegedly dangerous condition of the glass above the air conditioning unit. Leung denied having any prior notice of any glass, or any problem with the glass, located above the air conditioning unit. 632 Kings cites Yasheav's testimony that, on the date of the accident, he checked the area above the air conditioning unit before attempting to remove it, and did not see any glass there. 632 Kings also cites plaintiff's testimony that his first notice of the glass was when he felt it falling on top of him. Additionally, 632 points out that, in the two weeks he was working at the premises, plaintiff did not notice the alleged dangerous condition of the glass hidden above the air conditioning unit.
Plaintiffs fail to raise an issue of fact with respect to constructive notice of the alleged defect. Plaintiffs aver that 632 Kings “totally failed to show the absence of constructive notice of the subject dangerous condition, a pane of glass that was present for a great many years and was not visible to persons below and which fell when it was dislodged in the course of removing an old air conditioner and installing a new one.” The court notes that, as a general rule, “[a] party cannot establish its entitlement to summary judgment merely by pointing to gaps in the opponent's proof” (Falah v. Stop & Shop Companies, Inc., 41 AD3d 638, 640 [2007] ). Plaintiffs present no evidence of a probability of danger that would have required 632 Kings' to inspect or remedy the allegedly dangerous condition of the glass above the air conditioning unit. To establish constructive notice, plaintiff must show that 632 Kings had a reasonable period of time to remedy the condition before it caused injury. There is nothing in the record here to indicate that 632 Kings knew or should have known of the defective condition of the glass that allegedly caused plaintiff's injuries. There is also no evidence that the defect would have been visible and apparent to Leung when he visited the property. In fact, there is no evidence that the condition was visible to anyone prior to the accident, especially in light of Yasheav's testimony that he looked above the air conditioning unit before attempting to remove it and did not see any defective condition of any glass at that time. There is also no affirmative evidence as to when the allegedly dangerous condition began. Under the circumstances, there is no evidence that 632 Kings had any actual or constructive notice of the allegedly dangerous condition, or that it had an opportunity to discover and to cure the dangerous condition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 [1986];see also Pappalardo v. New York Health & Racquet Club, 279 A.D.2d 134 [2000];Magner v. Southland Corp., 261 A.D.2d 450 [1999] ).
(d) Constructive Notice and Contractual Right of Entry
Moreover, as previously discussed, although 632 Kings retained a right of re-entry to inspect and make repairs, such reservation of right is insufficient to permit the imposition of liability under the constructive notice theory absent the existence of a specific statutory violation and a significant structural or design defect that proximately caused plaintiff's injuries ( see generally Angwin v. SRF Partnership, L.P., 285 A.D.2d 570 2001]Fucile v. Grand Union Co., 270 A.D.2d 227 [2000] ). Plaintiff has failed to plead or prove the violation of a specific statutory provision, and there is no basis to conclude that the glass above the air conditioning unit constituted a significant structural or design defect ( see e.g. Belotserkovskaya v. Cafe Natalie, 300 A.D.2d 521 [2002] ).
Conclusion Regarding Dismissal of the Complaint Against 632 Kings
The court finds that 632 Kings has established its entitlement to summary judgment as a matter of law dismissing the complaint as asserted against it ( see e.g. Goggins v. Nidoj Realty Corp., 93 AD3d 757 [2012] ). Plaintiffs failed to show that 632 Kings breached any duty to maintain or repair the subject air conditioning unit or the glass allegedly located above the unit. In the absence of any evidence that 632 Kings: (1) controlled the premises; (2) was contractually obligated to maintain or repair the premises (including the subject air conditioner or the glass allegedly located above it); (3) had actual or constructive notice of the alleged defective condition; (4) created said condition; or (5) violated a specific statutory violation involving a structural defect, dismissal is warranted. Accordingly, that branch of 632 Kings' motion for summary judgment which seeks dismissal of the complaint, insofar as it is asserted against it, is granted.
632 Kings' Request for Contractual and Common–Law Indemnification
Turning to defendants' contractual indemnification cross-claim against the Amis, it is well-settled law that indemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed (Mikulski v. Adam R. West Inc., 78 AD3d 910, 911 [2010];Nesterczuk v. Goldin Mgt., Inc., 77 AD3d 800, 804–805 [2010] ). The right to contractual indemnification depends upon the specific language of the contract ( see Holub v. Pathmark Stores, Inc., 66 AD3d 741, 742–743 [2009];George v. Marshalls of MA, Inc., 61 AD3d 925, 930 [2009] ). Contractual indemnification is generally decided as a matter of law pursuant to the terms of the contract, after the trier of fact determines culpability. “[A] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances' “ (Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777, [1987],quoting Margolin v. New York Life Ins. Co., 32 N.Y.2d 149, 153 [1973] ).
“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” (Cava Constr. Co., Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 662 [2009];see Bellefleur v. Newark Beth Israel Med. Ctr., 66 AD3d 807, 808 [2009] ). As long as an owner or general contractor is not negligent, the statute does not bar a party from receiving contractual indemnification, even if the clause is broadly worded to include indemnification for the indemnitee's own negligence ( see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795, n. 5 [1997];see also Delaney v. Spiegel Assocs., 225 A.D.2d 1102, 1104 [1996] ). Where a triable issue of fact exists regarding the indemnitee's negligence, summary judgment on a claim for contractual indemnification must be denied as premature ( see Bellefleur v. Newark Beth Israel Medical Center, 66 AD3d 807, 808 [2009];State of New York v. Travelers Prop. Cas. Ins. Co., 280 A.D.2d 756, 757–758 [2001] ).
Furthermore, as relevant to 632 Kings' cross-claim for contractual indemnification, General Obligations Law (GOL) § 5–321 provides, in pertinent part, that:
“[e]very covenant, agreement or understanding, in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor ... in the operation or maintenance of the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”
Preliminarily, the court notes that 632 Kings asserted the following in its cross-claim against the Amis:
“If plaintiff sustained any injuries or damages as alleged in the plaintiffs' Verified Complaint, which this answering defendant denies, then such injuries or damages were caused by reason of the culpable conduct, acts or omissions, negligence, strict products liability, statutory violation, breach of contract, obligation or warranty of the [Amis].
By reason of the foregoing, defendant is entitled to indemnification or contribution from, and to have judgment against the [Amis], for all or part of any verdict or judgment the plaintiff may recover against this answering defendant.
PLEASE TAKE NOTICE that demand is hereby made, pursuant to CPLR Section 3011, that the [Amis] serve an Answer to this Cross–Claim within twenty (20) days or judgment will be taken against said defendant by default for the relief demanded herein.”
CPLR 3011 provides that “there shall be a reply to ... an answer to a cross-claim that contains a demand for an answer. If no demand is made, the cross-claim shall be denied or avoided.” However, “if an answer to the cross-claim is demanded and not forthcoming, the defendant on the cross-claim is in default, and the allegations of the cross-claim are deemed admitted” (2 N.Y. Prac., Com. Litig. in New York State Courts § 7:124 [3d ed.]; see also generally Franzone v. Quinn, 300 A.D.2d 857 [2002];Tane v. Whipple–Allen Const. Co., 245 A.D.2d 1061 [1997] ).
It is undisputed that the Amis failed to reply to the demand asserted in 632 Kings' cross claim for indemnification. Consequently, the allegations asserted in the above cross-claim are deemed admitted, and the Amis are obligated to indemnify 632 Kings pursuant to the terms of the Lease and Rider ( see Paragraph 8 of the Lease, and Paragraphs 43 and 46 of the Rider above). As articulated above, 632 Kings eliminated all triable issues of fact regarding its own negligence in the instant action. The Amis have also admitted the allegations asserted in 632 Kings' cross claim, by failing to respond to the cross-claim; thus, there are no remaining issues of fact as to the Amis' negligence in the instant action. The court finds that 632 Kings has met its initial burden of demonstrating an entitlement to contractual indemnification. The indemnification provision in the Lease is applicable to the instant facts; pursuant to the terms of the Lease, the Amis agreed to indemnify and hold harmless 632 Kings for any injuries which arose out of the negligence of the Amirs. The indemnification provision in the Rider is also applicable to the circumstances presented herein, as it is undisputed that plaintiff's accident arose out of or was connected with the use or occupancy of the demised premises by the tenant, the Amis.
Furthermore, the indemnification provisions at issue here are not void and unenforceable pursuant to GOL Section 5–321. The Lease calls for the Amis to indemnify 632 Kings for damages from any personal injury resulting from any cause whatsoever, “unless caused by or due to the negligence of the Owner, its agents, servants or employees.” The indemnification provision in the Lease does not exempt 632 Kings from liability resulting from its own negligence, therefore, it does not violate GOL Section 5–321, and it is enforceable. The provision in the Rider is broader, stating that the Amis agree to hold harmless and indemnify 632 Kings against all claims for personal injuries resulting from the occupancy and use of the premises by the tenant. While this provision may be broad enough to exempt 632 Kings from liability for damages resulting from its own negligence, such an agreement does not violate GOL Section 5–321 where the party to be indemnified is found to be free of any negligence, as is the case herein ( see generally Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 179 [1990] ). It is well-settled that, where there is no actual negligence of the party to be indemnified, GOL Section 5–321 does not preclude the enforcement of an underlying indemnification provision, even when the language in the provision violates the statute on its face ( see generally Itiri Brick & Concrete Corp v. Aetna Cas. & Sur. Co ., 89 N.Y.2d 786, 795, n. 5 [1997] ). Without a finding of negligence on the part of 632 Kings, the prohibition of indemnifying a party for its own negligence is inapplicable ( see Brown, 76 N.Y.2d at 179).
The court also notes that, pursuant to Paragraph 8 of the Lease, the Amis' obligation to defend and indemnify 632 Kings in this action includes the reimbursal of attorneys' fees and costs incurred by 632 Kings.
Accordingly, 632 Kings is entitled to contractual indemnification; that branch of 632 Kings' motion which seeks summary judgment on its cross-claim for contractual indemnification against the Amis is granted. 632 Kings' request for common-law indemnification with respect to the Amis is denied as academic.
Conclusion
In summary, the court rules as follows: (1) that branch of defendant's motion which seeks summary judgment dismissing plaintiffs' complaint and all cross-claims is granted; (2) that branch of defendant's motion which seeks summary judgment against the Amis under its contractual indemnification and common-law indemnification claims is granted with respect to contractual indemnification, and denied with respect to common-law indemnification.
The foregoing constitutes the decision and order of the court.