Opinion
1198/16
05-31-2019
Jose BURGOS, Plaintiff, v. 14 EAST 44 ST. LLC. K & H 14 Inc. d/b/a Bread & Butter, Casas Adobes Ventures, LLC., and CJ Restaurant Company Inc. d/b/a Delicacy, Defendants.
The following papers numbered 1 to 25 were read on this motion by defendant, K & H 14 Inc. d/b/a Bread & Butter (KH), seeking summary judgment dismissing the complaint and all cross claims, and cross motion by defendant 14 East 44th St., LLC. (14 East) granting it summary judgment on its cross claims for contribution and indemnification as against KH and cross motion by defendant Casa Adobes Ventures (Casa) granting it summary judgment on its cross claims for a contractual defense and indemnification as against defendant CJ Restaurant Company, Inc. d/b/a Delicacy (CJ), pursuant to CPLR 3212.
Papers Numbered
Notice of Motion - Affidavits - Exhibits 1-3
Notices of Cross Motion - Affidavits - Exhibits 4-9
Answering Affidavits - Exhibits 10-21
Reply Affidavits 22-25
Upon the foregoing papers it is ordered that the motion and cross motions are determined as follows:
Plaintiff seeks damages for personal injuries sustained on November 3, 2015, when he allegedly was caused to trip and fall over a raised portion of the public sidewalk on the boundary line between premises known as 12 East 44th Street and 14 East 44th Street. Casa is the owner of 12 East 44th Street and CJ was its tenant, and 14 East was the owner of 14 East 44th Street and at the time of the accident, KH was its tenant, occupying the first and second floor of the premises.
Administrative Code of City of NY § 7-210 imposes a non-delegable duty on an abutting commercial property owner to maintain the sidewalk in a "reasonably safe condition." However, the Administrative Code does not impose strict liability and a plaintiff is still required to prove negligence against the abutting property owner. (See Khaimova v. City of New York , 95 AD3d 1280 [2d Dept 2012].) Thus, in support of a motion for summary judgment, the defendant must demonstrate that it did not create nor have actual or constructive knowledge of the alleged condition for a sufficient length of time to remedy it. (See Harakidas v. City of New York , 86 AD3d 624 [2d Dept 2011].) It is well settled that "a lessee of property which abuts a public sidewalk owes no duty to maintain the sidewalk in a safe condition, and liability may not be imposed upon it for injuries sustained as a result of a dangerous condition in the sidewalk, except where the abutting lessee either created the condition, voluntarily but negligently made repairs, caused the condition to occur because of some special use, or violated a statute or ordinance placing upon the lessee the obligation to maintain the sidewalk which imposes liability upon the lessee for injuries caused by a violation of that duty". ( Martin v. Rizzatti , 142 AD3d 591, 593 [2d Dept 2016] ; see Reyderman v. Meyer Berfond Trust No.1 , 90 AD3d 633 [2d Dept 2011].)
Here, KH has made a prima facie showing through its submission, inter alia, of the depositions of its manager and 14 East that it did not create the condition complained of, negligently make repairs, derive a special use or violate a statute or ordinance. (See Zorin v. City of New York , 137 AD3d 1116 [2d Dept 2016].) In opposition, plaintiff and co-defendants failed to raise a triable issue of fact. Contrary to their contentions, a tenant's obligations, if any, pursuant to the lease do not impose on KH a duty to third parties, which includes plaintiff and co-defendants. (See Martin , 142 AD3d 591 ; Collado v. Cruz , 81 AD3d 542 [2d Dept 2011].) Thus, that branch of KH's motion for summary judgment to dismiss the complaint insofar as it is asserted against it is granted.
14 East cross-moves against KH for summary judgment on its cross claims for contribution, contractual and common law indemnification and for a legal defense, pursuant to the lease. The relevant portions of paragraph 8 of the lease regarding contractual indemnification set forth:
"Tenant shall indemnify and save 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...of any covenant or condition of this lease, or the carelessness, negligence or improper conduct of the Tenant...".
Similarly, paragraph 47.1 of the rider supplements paragraph 8 of the lease and states in part:
"Tenant shall defend, indemnify and save harmless Owner and its agents against and from (a)any and all claims, losses, liabilities, damages, demands, actions, causes of action, judgments, costs and expenses, including, without limitation, attorney's fees disbursements and court costs, arising from or in connection with: (i) the conduct of business in or management of the Premises or any work or thing whatsoever done or any condition created in and about the Premises during the term of this Lease; (ii)any act or omission of the Tenant...; (iii)any accident, injury or damage occurring outside the Premises, where such accident, injury or damage resulted or is claimed to have resulted from any act, omission or negligence of Tenant...and (iv)any default by Tenant in the performance of any of the covenants, terms, provisions, conditions and/or obligations on its part to be performed hereunder..."
Furthermore, paragraph 47.2 of the rider, sets forth:
"Without limiting Tenant's liability under the indemnity provided for in this Article, Tenant shall provide on or before the Commencement Date, and shall keep in force continuously throughout the term of this Lease, for the benefit of Owner and Tenant, insurance of the kinds and in the limits hereinafter specified against any liability whatsoever occasioned by any occurrence in, on or about, or resulting from the use, operation and/or maintenance of, the Premises, or the fixtures or equipment therein or the elevators, stairways, sidewalks, passageways and other areas adjacent to the Premises or located elsewhere in or about the Building and shall cause Owner... to be named as additional insureds, and as loss payees..."
14 East contends that KH failed to perform its obligations pursuant to the provisions of paragraph 30 of the lease which states: "if demised premises are situated on the street floor, Tenant shall, at Tenant's own expense, make all repairs and replacements to the sidewalks and curbs adjacent thereto" and paragraph 43.9(e) of the rider which states: "Tenant, at Tenant's sole cost and expense, shall keep the floors of the Premises and sidewalk(s) adjacent to the Premises, clean, in good repair and condition and free and clear of snow, ice, dirt, debris and other foreign matter. If required by any municipal or governmental agency, Tenant shall be obligated to replace all or any portion(s) of the sidewalk(s) adjacent to the Premises."
In opposition, KH maintains that absent any negligence on its part, the indemnity and hold harmless clauses of the lease are not applicable. KH avers that it had no obligation to repair the subject sidewalk as the complained of condition of the raised sidewalk, involved a structural repair, relying on paragraph 4 of the lease which sets forth that the "[o]wner shall maintain, and repair the public portions of the building, both exterior and interior" and tenant "shall make all non-structural repairs".
Additionally, KH states that as it was not required "by any municipal or governmental agency" to replace any portion of the sidewalk, pursuant to the provision of paragraph 43.9 of the rider, it had no affirmative duty to do so. Further, the manager of KH testified that KH was only responsible for daily cleaning and snow removal of the sidewalk and not for sidewalk repairs.
Although a reading of the lease and rider demonstrate an intention to indemnify, hold harmless and defend (see Drzewinski v. Atlantic Scaffold & Ladder Co., Inc. , 70 NY2d 774 [1987] ), these provisions only apply upon a finding of negligence or default of KH of its lease obligations with 14 East. Here, the provisions of the lease contained in paragraphs 4 and 30 relating to the tenant's obligations to perform a structural repair of the sidewalk are inconsistent. Pursuant to paragraph 40 of the rider, in the event of any inconsistencies between the lease and rider terms, the rider provisions shall prevail. However, the terms of paragraph 43.9 of the rider are also ambiguous. Although the tenant is obligated to keep the adjacent sidewalk "in good repair and condition", the same provision states that the tenant will only be "obligated to replace all or any portion(s) of the sidewalk" if so required by a municipal or governmental agency. It is uncontroverted that KH was not required to replace any portion of the sidewalk by the City of New York. As the lease is ambiguous with respect to the tenant's obligations to make structural repairs to the adjacent sidewalk, there is a question of fact as to whether this action arose from an act, omission, negligence or breach by KH, precluding summary judgment on the cross claims. (See Five Corners Car Wash, Inc. v. Minrod Realty Corp. , 134 AD3d 671 [2d Dept 2015] ; Expedite NYC, Inc. v. 1600 Stewart Ave., LLC , 276 AD2d 740 [2d Dept 2000].)
With regard to Casa's cross motion seeking summary judgment of its cross claims, CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of the pleadings with cross claims. Here, Casa failed to submit a copy of CJ's answer in support of its cross motion, warranting denial.
Accordingly, KH's motion for summary judgment is granted to the extent that the complaint is dismissed against it. The cross motions of 14 East and Casa seeking summary judgment on their cross claims are denied. All remaining requests for relief are denied.