Opinion
2012-12-27
Yolando CORRADO, Plaintiff, v. 80 BROAD LLC, Defendant–Respondent, First Republic Bank, Defendant–Appellant.
Devitt Spellman Barrett, LLP, Smithtown (John M. Denby of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Devitt Spellman Barrett, LLP, Smithtown (John M. Denby of counsel), for appellant. Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, ROMÁN, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered October 11, 2011, which to the extent appealed from as limited by the briefs, denied that portion of defendant tenant Bank's motion for summary judgment seeking dismissal of defendant landlord 80 Broad, LLC's cross claims against it and granted defendant landlord's cross motion for summary judgment on its indemnification claim, unanimously modified, on the law, to the extent of denying landlord's cross motion, and otherwise affirmed, without costs.
This is an action for personal injuries suffered by plaintiff, who is not a party to this appeal, when she tripped and fell on a defect in the public sidewalk in front of the defendant tenant bank's branch office, located in premises leased from defendant landlord's building. Pursuant to the lease, defendant landlord is responsible for maintaining the sidewalk and defendant tenant's use of the sidewalk is limited to a three foot “control zone” outside the premises for ingress, egress and deliveries where landlord retains control of the lighting, signage, presentation and design of the premises. In addition, the lease contains an indemnification provision providing that tenant is to indemnify landlord for any accident that occurs “in or about the premises.”
Although the phrase “in or about,” may, in appropriate circumstances, refer to a general area “expressing the idea of physical proximity” sufficient to include the sidewalk outside a demised premises ( see Hogeland v. Sibley Lindsay & Curr Co., 42 N.Y.2d 153, 159, 397 N.Y.S.2d 602, 366 N.E.2d 263 [1977] ), construing the indemnification clause in this manner would improperly place the clause in direct conflict with other provisions of the lease ( National Conversion Corp. v. Cedar Bldg. Corp., 23 N.Y.2d 621, 625, 298 N.Y.S.2d 499, 246 N.E.2d 351 [1969];HSBC Bank USA v. National Equity Corp., 279 A.D.2d 251, 253, 719 N.Y.S.2d 20 [1st Dept.2001] ). Tenant is precluded from having any beneficial use of or responsibility for maintenance of the sidewalk and the public sidewalk was not part of the leased premises. Accordingly, the indemnification provision cannot be construed as an agreement to indemnify landlord for accidents on the public sidewalk ( see e.g. Lopez v. Guei Shun Shiau, 29 Misc3d 1215(A), 2010 WL 4187961 [2010],affd.88 A.D.3d 598, 931 N.Y.S.2d 66 [1st Dept.2011] ).
The tenant also seeks summary judgment against the landlord on the tenant's common-law indemnification claims to the extent the tenant is liable to plaintiff. Such relief, which the tenant requested in the alternative, is unnecessary since the order appealed from also dismissed the complaint as against the tenant.