Opinion
40767.
Decided January 12, 2010.
RICHARD P. URDA, ESQ., Attorney for Plaintiffs, Ithaca, New York.
SMITH, SOVIK, KENDRICK SUGNET, P.C., By:Jessica P. Mathewson, Esq., Attorneys for Defendant The Price Chopper, Inc., Syracuse, New York.
WILSON, ELSER, MOSKOWITZ, EDLEMAN DICKER, LLP, By: Thomas M. Witz, Esq., Attorneys for Defendant Century Group, Albany, New York.
This action arises from a slip and fall accident which allegedly occurred in a grocery store operated by defendant Price Chopper, Inc. (PC) at 854 State Route 13, Cortland, New York, a location that PC leases from defendant Century Group, LLC (CG). Plaintiff sued both defendants, alleging that she fell while shopping when she slipped in a substantial puddle of water which had allegedly accumulated on the floor due to a leaky roof. Defendants asserted cross-claims against each other for indemnity or contribution. CG now moves for summary judgment directing that PC indemnify it against any judgment for plaintiff's injuries and the cost of defense.
The lease agreement between defendants contains the following provision by which PC, as lessee, agrees to indemnify CG, as lessor:
Lessee hereby indemnifies and agrees to save harmless Lessor and Lessor's mortgagee from and against all claims [(] unless such claims are caused by the acts or omissions of Lessor or its agents, servants and suppliers), which either (a) arise from or are in connection with the possession, use, occupation, management, repair, maintenance or control of the Demised Premises or any portion thereof; (b) arise from or are in connection with any act or omission of Lessee or Lessee's agents; (c) result from any default, breach, violation or nonperformance of this Lease or any provision of this Lease by Lessee; or (d) result in injury to person or property or loss of life sustained in the Demised Premises. Lessee shall defend any claims against Lessor or Lessor's mortgagee with respect to the foregoing or in which either may be impleaded. Lessee shall pay, satisfy and discharge any judgments, orders and decrees which may be recovered against Lessor for [sic] Lessor's mortgagee in connection with the foregoing.
(Affidavit of Thomas M. Witz, Esq., sworn to October 15, 2009 [Witz Affidavit], Exhibit G [Lease], Article 25.2 [emphasis supplied]).
The Lease also contains the following reciprocal provision:
Lessor hereby indemnifies and agrees to save harmless Lessee from and against all claims ( unless such claims are caused by the acts or omissions of Lessee or its agents, servants or suppliers), which either (a) arise from or are in connection with the possession, use, occupation, management, repair, maintenance or control of the common areas as herein defined or any portion thereof; (b) arise from or are in connection with any act or omission of Lessor or Lessor's agents; (c) result from any default, breach, violation or nonperformance of this Lease or any provision of this Lease by Lessor[;] or [(d] result in injury to person or property or loss of life sustained in or about the common areas. Lessor shall defend any claims against Lessee with respect to the foregoing or in which it may be impleaded. Lessor shall pay, satisfy and discharge any judgments, orders and decrees which may be recovered against Lessee in connection with the foregoing.
(Lease, Article 25.3 [emphasis supplied]). The Lease also contains insurance procurement clauses, requiring in relevant part, that each defendant maintain public liability insurance — CG with respect to common areas (Lease, Article 14.1), and PC with respect to the Demised Premises (the store) (Lease, Article 14.5) — with policy limits of not less than $3,000,000.
CG concedes that the indemnification clause of Article 25.2 does not provide that it is to be indemnified for its own negligence (Memorandum of Law, dated October 15, 2009, p. 4); yet it argues that the indemnification clause of Article 25.2 and the insurance procurement clause of Article 14.5, taken together, evince the parties' intent that PC be liable for all accidents occurring within the store — regardless of fault, and extending even to those caused by CG's own negligence — and that CG be liable for all accidents occurring in the common areas. The court disagrees. An agreement will be construed to provide indemnification to a party for its own negligence only if it evinces "an unmistakable intent to indemnify" ( Great N. Ins. Co. v Interior Constr. Corp. , 7 NY3d 412 , 417 [internal quotations and citations omitted]; accord Hogeland v Sibley, Lindsay Curr Co., 42 NY2d 153, 158 — 159 [1977]).
Here, rather than showing an unmistakable intent that PC indemnify CG for its own negligence, the reciprocal indemnification clauses of Article 25 specifically provide for the contrary result — that each defendant remains directly liable for its own negligence (and that of its own agents, servants, or suppliers). Article 25.2 specifically excludes from PC's indemnity obligation to CG claims " caused by the acts or omissions of Lessor or its agents, servants and suppliers." Article 25.3 separately requires that CG indemnify PC for claims that " arise from or are in connection with any act or omission of Lessor or Lessor's agents." In brief, it is apparent from the Lease terms that defendants agreed that PC shall be liable for all claims arising from incidents within the store — unless caused by CG's negligence — and that CG shall be liable for all claims arising from incidents in the common areas — unless caused by PC's negligence.
In light of the foregoing, CG is left to argue that the insurance procurement clause contained in Article 14.5 of the Lease is alone sufficient to require that PC indemnify CG for claims arising from CG's negligence. Its reliance on Hogeland and Great Northern for that proposition is misplaced. In Hogeland and Great Northern, the basis for holding that the tenants were obligated to indemnify the landlords for their own negligence was the expansive language of the indemnification clauses — which, unlike the language at issue in this case, specifically provided indemnity to the landlords for their own negligence under the relevant facts — and not simply that the lease agreements happened to contain both indemnity and insurance procurement clauses.
In Hogeland, the lease required the tenant to indemnify the landlord "from and against any and all claims of whatever nature . . . whatsoever caused to any person in or about the Tenant's demised premises" ( Hogeland, 42 NY2d at 156 — 157 [emphasis supplied]). The lease in Great Northern required the tenant to indemnify the landlord for " any and all claims . . . (unless caused solely by Landlords' negligence)" ( Great Northern, 7 NY3d 415 — 416, 417 n. 3 [emphasis supplied]; see also Castano v Zee-Jay Realty Co. , 55 AD3d 770 , lv denied 12 NY3d 701 [tenant required to indemnify landlord against any and all claims resulting from an incident in the demised premises, see Brief for Defendants — Appellants, 2007 WL5416278]; Jenrette v Green Acres Mall , 52 AD3d 386 [same, see Brief for Defendants/Third-Party Plaintiffs — Appellants, 2008 WL5934868]. In each of the foregoing cases, it was first determined that the language of the indemnification clauses — without reference to the existence of an insurance procurement clause — unmistakably entitled the landlords to indemnification for their own negligence. Only then was it determined that the existence of insurance procurement clauses — which required the tenants to obtain liability insurance to provide third parties with a source of compensation for damages sustained as a result of the landlords' negligence — rendered the applicable indemnification provisions enforceable notwithstanding General Obligations Law § 5-321 (voiding agreements that exempt lessors from their own negligence). Here, the language of the insurance procurement clause of Article 14.5 — which requires that PC obtain public liability insurance for incidents arising in the store, but which does not address apportionment of liability — standing alone, is insufficient to refute the intent so clearly expressed in the indemnification clauses of the Lease that CG remain liable for its own negligence ( see Moore v First Indus., L.P., 296 AD2d 537).
The Lease requires that PC indemnify CG for all claims and damages arising out of incidents in the store, unless caused by CG's own negligence. Plaintiff has alleged that CG was responsible, at least in part, for creating the puddle of water in which she fell by reason of its negligent failure to maintain the roof as required by Article 9.2 of the Lease. CG's motion is granted, therefore, to the extent that PC shall indemnify CG from and against all damages and expenses arising out of this cause of action, except those attributable to the negligence, if any, of CG, and its agents, servants, and suppliers, and is otherwise denied ( cf. Murray v Stein, 11 Misc 3d 1052[A], 2005 NY Slip Op 52264[U]).
This decision constitutes the order of the court. The mailing of copies of this decision and order by the court shall not constitute notice of entry.