Opinion
19649 2007.
Decided March 25, 2010.
Portnoy Gallagher, P.C., by Kevin M. Gallagher, Esq., New York, NY, For the Plaintiff.
Barry, McTiernan Moore, by Edwin F. Lambert, Jr., Esq., New York, NY, for the Defendant Rego Park 97 LLC.
Kim, Patterson Sciarrino, by Jerome Patterson, Esq., Bayside, NY, for the Defendant Water Lily Nail Corp.
It is ordered that the motion and cross motion are determined as follows:
Plaintiff allegedly was injured when she slipped and fell as she was leaving Water Lily's nail salon by way of the rear door. It is alleged that the accident happened when a piece of cloth or a mat that Water Lily's owner had placed over a patch of ice directly outside the door moved as plaintiff stepped on it. At the time of the accident, the rear door was the only exit from the salon. The nail salon is located in a shopping center owned by defendant Rego Park. Water Lily is the assignee of a lease agreement with Rego Park for the street level store premises it occupies.
An owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injuries resulting from a breach of that duty. ( See, Sowa v S.J.N.H. Realty Corp. , 21 AD3d 893 , 894.) An out-of-possession landlord is not relieved of liability for accidents that occur on the leased premises if the landlord creates a dangerous condition that results in injury or either retains control over the property or is contractually obligated to maintain or repair the premises. ( See, Wolfe v Long Is. Power Auth. , 34 AD3d 575 ; cf., Gavallas v Health Ins. Plan of Greater NY , 35 AD3d 657 ; Couluris v Harbor Boat Realty, Inc. , 31 AD3d 686 .) A tenant may be held liable for negligently creating a dangerous condition or allowing the leased premises to become dangerous, regardless of its obligations under the lease. ( See, Giannattasio v Han Suk Kang , 57 AD3d 728 ; Seifert v Arlona Co., 205 AD2d 679.) To establish its prima facie entitlement to judgment as a matter of law in a slip and fall case, a defendant must submit evidence in admissible form demonstrating that it neither created the hazardous condition alleged to have caused the accident nor had actual or constructive notice of the condition. ( See, Birnbaum v New York Racing Assn., Inc. , 57 AD3d 598 ; DeFalco v BJ's Wholesale Club , 38 AD3d 824 ; Vasta v Home Depot , 25 AD3d 690 ; see also, Aurilia v Empire Realty Assoc. , 58 AD3d 773 ; Kaplan v DePetro , 51 AD3d 730 ; Robinson v Trade Link Am. , 39 AD3d 616 .) There can be more than one proximate cause of an accident. ( See, Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 561 n 2 [1999]; Scala v Scala , 31 AD3d 423 .) To be subject to liability a defendant's negligence need only be a substantial factor in bringing about the plaintiff's injuries. ( See, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520.) Proximate cause is generally a question for the trier of fact. (Id.)
Water Lily and Rego Park have each failed to make a prima facie showing in its favor on the issues of possession and control of the accident site, creation of an allegedly dangerous condition, and/or notice of a dangerous condition, as well as on the issue of causation. ( See, Hahn v Wilhelm , 54 AD3d 896 ; Marrone v South Shore Props. , 29 AD3d 961 .) Thus, summary judgment dismissing the complaint is precluded without regard to the sufficiency of plaintiff's opposition papers. ( See, Musachio v Smithtown Cent. School Dist. , 68 AD3d 949 ; Holub v Pathmark Stores, Inc. , 66 AD3d 741 ; Birnbaum, 57 AD3d at 599.)
The broad indemnification provision in paragraph 54(b) of the rider to the lease for the premises occupied by Water Lily expresses the unequivocal intent that Water Lily indemnify Rego Park for Rego Park's own negligence. ( See, Great Northern Ins. Co. v Interior Constr. Corp. , 7 NY3d 412 , 417; Levine v Shell Oil Co., 28 NY2d 205.) The lease and rider also contain separate insurance procurement provisions. Where, as here, the parties to a commercial lease have freely entered into an indemnification agreement and used insurance to allocate the risk of liability to third parties between themselves, the lease provision does not violate General Obligations Law § 5-321 and is enforceable. ( See, Great Northern Ins. Co., 7 NY3d at 418-419; Hogeland v Sibley, Lindsay Curr Co., 42 NY2d 153; Castano v Zee-Jay Realty Co. , 55 AD3d 770 ; see also, Sau Fong Li Woo v 267 Canal St. Corp. , 59 AD3d 608 .)
Thus, Rego Park is awarded partial summary judgment on the issue of liability on its cross claim for contractual indemnification insofar as Rego Park seeks indemnification for reasonable legal fees and costs incurred in the defense of this action ( see, DiPerna v American Broadcasting Cos., 200 AD2d 267; Lavorato v Bethlehem Steel Corp., 91 AD2d 1184; see generally, Milani v Broadway Mall Props., Inc., 261 AD2d 370), and conditional partial summary judgment insofar as the cross claim seeks indemnification for the amount of any judgment or verdict recovered by plantiff against Rego Park. ( See, Jenrette v Green Acres Mall , 52 AD3d 386 ; Rubin v Port Auth. of NY and N.J. , 49 AD3d 422 .)
Accordingly, the motion by Water Lily and the part of the cross motion by Rego Park that is for summary judgment dismissing the complaint are denied. The part of the cross motion by Rego Park that is for summary judgment on its cross claim against Water Lily for contractual indemnification is granted to the extent indicated herein.