Ameri v. Diane Young Skincare Center, Inc.

11 Citing cases

  1. Great N Ins v. Interior Corp.

    7 N.Y.3d 412 (N.Y. 2006)   Cited 202 times   2 Legal Analyses
    In Great N. Ins. Co. v Interior Constr. Corp. (7 NY3d 412), the Court of Appeals reaffirmed that "a commercial lease negotiated between two sophisticated parties who included a broad indemnification provision, coupled with an insurance procurement requirement" is enforceable (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d at 419).

    Hogeland v Sibley, Lindsay Curr Co. ( 42 NY2d 153) is still the law in the State of New York. ( Kinney v Lisk Co., 76 NY2d 215; Ameri v Young Skincare Ctr., 170 AD2d 280; Parra v Ardmore Mgt. Co., 258 AD2d 267; Schumacher v Lutheran Community Servs., 177 AD2d 568; La Vack v National Shoes, 124 AD2d 352; Reeves v Welch, 127 AD2d 1000; Tormey v City of New York, 302 AD2d 277; Sanford v Woodner Co., 304 AD2d 813.) IV Stare decisis by itself, under the facts herein, should lead to the affirmance of the court below. ( Hogeland v Sibley, Lindsay Curr Co., 42 NY2d 153; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Matter of Higby v Mahoney, 48 NY2d 15; Kinney v Lisk Co., 76 NY2d 215.)

  2. Spatz v. Axelrod Mgt. Co.

    165 Misc. 2d 759 (N.Y. Misc. 1995)   Cited 7 times

    Water Damage Cases Water damage caused by leaking ceilings and roofs has been the subject of considerable litigation between tenants and landlords (see, e.g., Walling v Holman, 858 F.2d 79 [2d Cir 1988], cert denied 489 U.S. 1082 [water damage to tenant's parquet floor is recoverable under Real Property Law § 235-b]; Frisch v Bellmarc Mgt., 190 A.D.2d 383 [roof leaks]; Couri v Westchester Country Club, 186 A.D.2d 712 [constant water damage]; Ameri v Young Skincare Ctr., 170 A.D.2d 280 [tenant clothing store awarded $187,639 for water damage to merchandise]; Halkedis v Two E. End Ave. Apt. Corp., 161 A.D.2d 281 [leaking roof; tenant fails to prove damages]; Minjak Co. v Randolph, 140 A.D.2d 245 [tenants who suffered 40 separate leaks from health spa on floor above awarded rent abatement, attorneys' fees of $5,000 and punitive damages of $5,000]; Vanderhoff v Casler, 91 A.D.2d 49 [faulty plumbing]; Kachian v Aronson, 123 Misc.2d 743 [water damage; rent abatement awarded]; McGuinness v Jakubiak, 106 Misc.2d 317 [flooding during rainstorm dumps six inches of water onto apartment floors]; McBride v 218 E. 70th St. Assocs., 102 Misc.2d 279 [tenants suffered damages from eight separate floods]; Blatt v Fishkin, 101 Misc.2d 888 [roof leaks have an "adverse impact on * * * life"]; Sargent Realty Corp. v Vizzini, 101 Misc.2d 763 [upstairs tenants cause four floods; rent abatement awarded]; Goodman v Ramirez, 100 Misc.2d 881 [leaky toilets; tenants awarded $400 for "`disrupt

  3. Ameri v. Young Skincare Ctr., Inc.

    81 N.Y.2d 709 (N.Y. 1993)

    Decided May 4, 1993 Appeal from (1st Dept: 170 A.D.2d 280) MOTIONS FOR LEAVE TO APPEAL GRANTED OR DENIED

  4. Ameri v. Young Skincare Center, Inc.

    78 N.Y.2d 908 (N.Y. 1991)

    Decided June 11, 1991 Appeal from (1st Dept: 170 A.D.2d 280) FINALITY OF JUDGMENTS AND ORDERS

  5. Great N. Ins. Co. v. Interior Constr. Corp.

    18 A.D.3d 371 (N.Y. App. Div. 2005)   Cited 9 times
    Holding that "where . . . sophisticated parties negotiating at arm's length have agreed to `allocat[e] the risk of liability to third parties between themselves, essentially through the employment of insurance,' that agreement is enforceable"

    Before: Saxe, J.P., Marlow, Ellerin, Nardelli and Sweeny, JJ., concur. While lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy (General Obligations Law § 5-321), where, as here, sophisticated parties negotiating at arm's length have agreed to "allocat[e] the risk of liability to third parties between themselves, essentially through the employment of insurance," that agreement is enforceable ( Hogeland v. Sibley, Lindsay Curr Co., 42 NY2d 153, 161; Parra v. Ardmore Mgt. Co., 258 AD2d 267, 269, lv denied 93 NY2d 805; Ameri v. Diane Young Skincare Ctr., 170 AD2d 280, 281-282, lv denied 81 NY2d 709). The instant lease reflects "the `unmistakable intent of the parties'" ( Hogeland, 42 NY2d at 159, quoting Levine v. Shell Oil Co., 28 NY2d 205, 212) that Depository indemnify New Water for the latter's own negligence, except as to claims arising from a condition created by New Water or from any accident, injury or damage caused solely by New Water's negligence. The lease further requires Depository to maintain insurance and to name New Water as an additional insured on its comprehensive general liability policy, and requires both parties to include mutual waivers of subrogation in their respective policies ( see Hogeland, 42 NY2d at 161; Morel v. City of New York, 192 AD2d 428, 429). Since it was stipulated that New Water's negligence was not the sole cause of the damage, New Water is entitled to contractual indemnification under the lease.

  6. Pavon v. Rudin

    254 A.D.2d 143 (N.Y. App. Div. 1998)   Cited 85 times
    Observing that courts "apply[] res ipsa loquitur to accidents involving items exposed to significant public traffic, where the specific mechanism that malfunctioned was not handled by the general public"

    Under a res ipsa loquitur theory, moreover, even assuming that the hinge was defective in some way, it was the tenant Bristol-Myers who initiated the renovations and took responsibility for hiring the contractors who installed the door. Summary judgment should therefore be granted on Rudin's cross-motion for common-law and contractual indemnification ( Ameri v. Diane Young Skincare Ctr., 170 A.D.2d 280, 281, lv denied 81 N.Y.2d 709). Concur — Milonas, J.P., Rosenberger, Wallach and Williams, JJ.

  7. Pulley v. McNeal

    240 A.D.2d 913 (N.Y. App. Div. 1997)   Cited 16 times
    In Pulley, no proof of notice in any form existed, there was no visible indication of a defect, there was no proof regarding the duration that any defect existed, and the plaintiff herself had no idea what caused the ceiling to fall (id.).

    Given this, summary judgment was properly granted (see, Vrenna v Tunis, 226 A.D.2d 1130, lv denied 89 N.Y.2d 803). We also find that, inasmuch as defendant did not have exclusive control over the ceiling during Dixon's tenancy, the doctrine of res ipsa loquitor is inapplicable (see, Caffiero v. Shore, 216 A.D.2d 265, lv denied 87 N.Y.2d 802; Ameri v. Young Skincare Ctr., 170 A.D.2d 280, lv dismissed 78 N.Y.2d 908, lv denied 81 N.Y.2d 709). In view of our disposition, we need not address plaintiff's remaining contention.

  8. Gottesman v. Graham Apartments, Inc.

    2015 N.Y. Slip Op. 50570 (N.Y. Civ. Ct. 2015)

    , 438 N.Y.S.2d 164 (1981) ] but not to condominium owners [see e.g., Frisch, supra] and can be used affirmatively as herein [see e.g., McGuinness v. Jakubiak, 106 Misc 2d 317, 321, 431 N.Y.S.2d 755, 757 (1980) ("this warranty may be used affirmatively in a cause of action for property damage") ] or as a defense in landlord's action seeking unpaid rent [see e.g., Kachian v. Aronson, 123 Misc 2d 743, 475 N.Y.S.2d 214 (1984) (fifteen percent (15%) rent abatement) ]. Water damage caused by leaking ceilings and roofs has been the subject of considerable litigation between tenants and landlords [see e.g., Walling v. Holman, 858 F.2d 79 (2nd Cir.1988), cert. denied, 489 U.S. 1082, 109 S.Ct. 1537, 103 L.Ed.2d 842 (1989) ( water damage to tenant's parquet floor is recoverable under Real Property Law § 235—b); Frisch v. Bellmarc Management, Inc., 190 AD2d 383, 597 N.Y.S.2d 962 (1993) (roof leaks); Couri v. Westchester Country Club, 186 AD2d 712, 589 N.Y.S.2d 491 (1992) (constant water damage); Ameri v. Diane Young Skincare Center, Inc., 170 AD2d 280, 565 N.Y.S.2d 810 (1991) (tenant clothing store awarded $187,639.00 for water damage to merchandise); Halkedis v. Two East End Avenue Apartment Corp., 161 AD2d 281, 555 N.Y.S.2d 54 (1990) (leaking roof; tenant fails to prove damages); Minjak Co., v. Randolph, 140 AD2d 245, 528 N.Y.S.2d 554 (1988) (tenants who suffered 40 separate leaks from health spa on floor above awarded rent abatement, attorneys' fees of $5,000.00 and punitive damages of $5,000.00); Vanderhoff v. Casler, 91 AD2d 49, 458 N.Y.S.2d 289 (1983) (faulty plumbing); Kachian v. Aronson, 123 Misc 2d 743, 475 N.Y.S.2d 214 (1984) (water damage; rent abatement awarded); McGuinness v. Jakubiak, 106 Misc 2d 317, 431 N.Y.S.2d 755 (1980) (flooding during rainstorm dumps six inches of water onto apartment floors); McBride v. 218 East 70th Street Associates, 102 Misc 2d 279, 425 N.Y.S.2d 910 (1979) ( tenants suffered damages from eight separate floods); Blatt v. Fishkin, 101 Misc 2d 888, 422 N.Y.S.2d 283, 284 (1979) (roof leaks have an "adverse impact on ..

  9. Gottesman v. Graham Apartments, Inc.

    16 N.Y.S.3d 792 (N.Y. Civ. Ct. 2015)

    N.Y.S.2d 164 (1981) ] but not to condominium owners [see e.g., Frisch, supra ] and can be used affirmatively as herein [see e.g., McGuinness v. Jakubiak, 106 Misc.2d 317, 321, 431 N.Y.S.2d 755, 757 (1980) ( “this warranty may be used affirmatively in a cause of action for property damage”) ] or as a defense in landlord's action seeking unpaid rent [see e.g., Kachian v. Aronson, 123 Misc.2d 743, 475 N.Y.S.2d 214 (1984) (fifteen percent (15%) rent abatement) ]. Water damage caused by leaking ceilings and roofs has been the subject of considerable litigation between tenants and landlords [see e.g., Walling v. Holman, 858 F.2d 79 (2nd Cir.1988), cert. denied, 489 U.S. 1082, 109 S.Ct. 1537, 103 L.Ed.2d 842 (1989) (water damage to tenant's parquet floor is recoverable under Real Property Law § 235 —b); Frisch v. Bellmarc Management, Inc. , 190 A.D.2d 383, 597 N.Y.S.2d 962 (1993) (roof leaks); Couri v. Westchester Country Club, 186 A.D.2d 712, 589 N.Y.S.2d 491 (1992) (constant water damage); Ameri v. Diane Young Skincare Center, Inc., 170 A.D.2d 280, 565 N.Y.S.2d 810 (1991) (tenant clothing store awarded $187,639.00 for water damage to merchandise); Halkedis v. Two East End Avenue Apartment Corp., 161 A.D.2d 281, 555 N.Y.S.2d 54 (1990) (leaking roof; tenant fails to prove damages); Minjak Co., v. Randolph, 140 A.D.2d 245, 528 N.Y.S.2d 554 (1988) (tenants who suffered 40 separate leaks from health spa on floor above awarded rent abatement, attorneys' fees of $5,000.00 and punitive damages of $5,000.00);

  10. JANA L. v. WEST 129th ST. REALTY CO., LLC

    2005 N.Y. Slip Op. 50199 (N.Y. Sup. Ct. 2005)

    While the court in Margolin v. New York Life Insurance Company, 32 NY2d 149 (1973), stated that "indemnity provisions will not be construed to indemnify a party against his own negligence unless such intention is expressed in unequivocal terms," it held that this "is not to say that the indemnity clause must contain express language referring to the negligence of the indemnitee, but merely that the intention to indemnify can be clearly implied from the language of the entire agreement and the surrounding facts and circumstances" (p. 153). See also, McDonald v. MJ Peterson Development Corporation, 269 AD2d 734 (4th Dept. 2000); Strauss v. Stoneledge Farms, 256 AD2d 1186 (4th Dept. 1998); Ameri v. Young Skincare Center, Inc., 170 AD2d 280 (1st Dept. 1991). Here, the financial adjustments made at closing pursuant to the Contract treated Associates as the owner of the Building on January 25, although as aforesaid, it did not have any control over the Building until after the closing was completed.