Opinion
100664/08.
Decided on February 1, 2010.
O'Donnell Fox, PC, New York, NY, for plaintiff.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, White Plains, NY, for defendant Battery Park City Authority.
Michael A. Cardozo, New York, NY, for defendant City of New York.
Bates Baer, New York, NY, for third-party defendant.
By notice of motion dated September 3, 2009, third-party defendant Gigino at Wagner Park, LLC (Gigino) moves pursuant to CPLR 3212 for an order summarily dismissing the third-party complaint against it. By notice of cross-motion dated October 19, 2009, defendant Battery Park City Authority (BPCA) moves for an order summarily dismissing the complaint and all cross-claims against it. Plaintiff and Gigino oppose BPCA's motion; BPCA opposes Gigino's motion. By notice of cross-motion dated September 25, 2009, defendant The City of New York (City) moves, without opposition, for leave to seek summary judgment and for an order summarily dismissing the complaint and all cross-claims against it.
I. UNDISPUTED FACTUAL BACKGROUND
By lease dated June 16, 1999, Gigino, a restaurant and café, rented from BPCA the south building, or South Pavilion, of 20 Battery Place, New York, New York, shown on a diagram annexed to the lease. The demised premises include no walkways or paths. (Affirmation of Robin B. Baer, Esq., dated Sept. 3, 2009 [Baer Aff.], Exh. L). Pursuant to section 7.06 of the lease, BPCA is required to maintain and repair the sidewalks adjacent to the leased premises. In section 12.02, Gigino agreed to:
indemnify, defend and hold harmless BPCA and the [Battery Parks City Park] Conservancy . . . from and against any and all claims, demands, causes of action, judgments, costs, expenses (including reasonable attorneys' fees), and all losses and damages (including consequential and punitive damages), claims, or liability for any damage to any property or injury, illness or death of any person (a) occurring in, on, or about the Premises, or any part thereof arising at any time and from any cause whatsoever . . . (c) arising out of or in any way related to claims for work or labor performed or materials or supplies furnished to, or at the request of, [Gigino] or in connection with the performance of any work done by or for the account of [Gigino] . . .
( Id.).
In June 2007, BPCA permitted Gigino to store tables and chairs in a storage area in the North Pavilion of 20 Battery Place. Access to the area was obtained exclusively through Bruno Pomponio, the director of maintenance for the Battery Park City Parks Conservancy, an affiliate of BPCA. ( Id., Exh. J).
On a rainy June 4, 2007, plaintiff, Gigino's General Manager, sought access to the storage area from Pomponio, and at approximately 11 a.m., while on her way there with other Gigino employees, allegedly slipped and fell on a wet and slippery metal plate cover on the sidewalk near the northerly stairs of the North Pavilion. (Baer Aff., Exhs. G, H).
II. PERTINENT PROCEDURAL BACKGROUND
On or about January 4, 2008, plaintiff sued defendants for injuries she sustained as a result of her fall, advancing causes of action for negligence and nuisance. ( Id., Exh. A). On or about February 7, 2008, BPCA served its answer. ( Id., Exh. B). On or about April 30, 2008, BPCA commenced a third-party action against Gigino, seeking indemnification. ( Id., Exh. D).
At a deposition held on February 6, 2009, Pomponio testified, in pertinent part, that the plate cover on which plaintiff allegedly slipped had been installed by a contractor hired by BPCA, who also replaced the hexagonal pavers surrounding the plate, and that BPCA is generally responsible for repairing or replacing such plates and pavers and for addressing any complaints concerning walkways or hard surfaces in Battery Park. Pomponio has never seen or been told that Gigino employees performed any repairs or maintenance in the area of the accident. ( Id., Exh. J).
III. GIGINO'S MOTION TO DISMISS
A. Contentions
Relying on the lease and Pomponio's deposition testimony, Gigino maintains that as no sideway or walkway is part of its leased premises, it did not own, operate, control, maintain or repair the location where plaintiff's accident allegedly occurred and thus had no duty, contractual or otherwise, to keep it in good repair. (Baer Aff.; Affirmation of Robin B. Baer, Esq., dated Nov. 23, 2009).
BPCA asserts that, to the contrary, the lease entitles it to indemnification from Gigino, reasoning that as plaintiff's injury was sustained incident to Gigino's use of the storage area and pursuant to her employment with Gigino, it occurred "on or about the premises, or any part thereof," or "[arose] out of or . . . [was] related to [a] claim[] for work or labor performed . . . or in connection with the performance of any work done by . . . [Gigino]." It also claims entitlement to common-law indemnification from Gigino absent any evidence that it was negligent. (Affirmation of Jacqueline Hattar, Esq., dated Oct. 19, 2009 [Hattar Aff.], Exh. I; Reply Affirmation of Jacqueline Hattar, Esq., dated Dec. 2, 2009 [Reply Aff.]).
B. Analysis
A contractual assumption of an obligation of indemnification "must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed." ( Talapin v One Madison Ave. Condominium , 63 AD3d 909 , 911 [2d Dept 2009]). Here, in order for BPCA to be entitled to indemnification from Gigino pursuant to section 12.02(a) of the lease, the alleged accident must haveoccurred in, on, or about the premises or any part of Gigino's premises, and BPCA's reliance on a lease provision absolving it from liability absent evidence of gross negligence is misplaced.
Gigino's demised premises, as reflected in the lease, are located in the South Pavilion, whereas the storage area is in the North Pavilion, and each is contained within a separate building. Thus, a strict construction of the indemnification provision warrants the finding that the alleged accident did not occur in, on, or about the demised premises. ( See Axelrod v Maryland Cas. Co., Inc., 209 AD2d 336 [1st Dept 1994] [where fourth floor constituted demised premises, plaintiff's injury while walking through elevator door on first floor did not occur on demised premises or any appurtenance thereto]; Rensselaer Polytechnic Inst. v Zurich Am. Ins. Co., 176 AD2d 1156 [3d Dept 1991] [as accident occurred on walkway adjacent to leased premises, it did not occur within leased premises]; Genl. Acc. Fire Life Ass. Corp., Ltd. v Travelers Ins. Co., 162 AD2d 130 [1st Dept 1990] [although lease permitted tenant to pick up equipment throughout facility for repair on its premises, accident occurring in part of facility not leased to tenant did not occur within the leased premises]; cf ZKZ Assocs. LP v CNA Ins. Co., 89 NY2d 990 [part of sidewalk where accident occurred necessarily used for ingress and egress from leased premises and thus part of premises]; Queens Office Tower Assocs. v General Mills Rest., Inc., 269 AD2d 223 [1st Dept 2000] [site of accident fell within demised premises where accident occurred on sidewalk immediately adjacent to dumpster designated in lease as specific location in dock for placement of dumpster]).
BPCA's alternative argument essentially rests on an assumption that an actionable interest in another's premises may arise solely from the injured party's use of the premises incidental to her employment. Authority, however, is to the contrary. ( See Greater New York Mut. Ins. Co. v Liberty Mut. Ins. Co., NYLJ, Sept. 25, 2003, at 24, col 6 [Dist Ct, SD NY] [rejecting defendant's claim that injury occurred on premises where plaintiff engaged at time in act related to tenant's use of premises]). Even where the parties expressly agree to the other's use of the premises, an actionable interest does not arise. ( See Rensselaer Polytechnic, 176 AD2d 1156).
Section 12.02(c) of the lease covers accidents "arising out of or in any way related to claims for work or labor performed . . . in connection with the performance of any work done by
. . . [Gigino]." The strict construction of this provision also precludes indemnification absent any assertion that plaintiff has made a claim for work or labor performed.
Finally, a party who is vicariously liable for injuries solely pursuant to a statutory duty or by operation of law may seek common-law indemnification against the actual tortfeasor. (23 NY Jur 2d, Contribution, Etc. § 90 [2009]; Chapel v Mitchell, 84 NY2d 345; Katz v Wiener, 302 AD2d 497 [2d Dept 2003]). Here, as no allegation is made that BPCA is liable to plaintiff solely by operation of law or pursuant to a statutory duty, BPCA may not seek common-law indemnification from Gigino. ( See eg Kielar v Metropolitan Museum of Art , 55 AD3d 456 [1st Dept 2008] [absent evidence that defendants were affirmatively negligent, and as they were property owners vicariously liable under Labor Law, they were entitled to common-law indemnification from employer]).
In light of the foregoing, Gigino has established that it is entitled to an order dismissing the third-party complaint against it.
IV. BPCA'S CROSS-MOTION TO DISMISS
A. Contentions
Based on the undisputedly heavy rainstorm in progress on the day of plaintiff's accident, and the absence of any evidence that it caused or created, or had any actual or constructive notice of any dangerous or defective condition, BPCA contends that it may not be held liable for plaintiff's injury. It also argues that its entitlement to indemnification and/or contribution by Gigino warrants summary dismissal of the complaint. (Hattar Aff.).
In opposition, plaintiff and Gigino maintain that BPCA's motion for summary judgment is untimely, having been filed and served more than 120 days since the note of issue was filed on May 11, 2009, without explanation. (Affirmation of Thomas O'Donnell, Esq., dated Nov. 17, 2009, Exh. A).
In reply, BPCA asserts that its cross-motion may be considered as it seeks relief nearly identical to that sought in Gigino's timely motion for summary judgment. (Reply Aff.).
B. Analysis
While a motion for summary judgment must be made within 120 days after a note of issue is filed (CPLR 3212[a]; Brill v City of New York , 2 NY3d 648 ), an untimely motion or cross-motion for summary judgment may be considered if a timely motion for summary judgment was made on nearly identical grounds ( Grande v Peteroy , 39 AD3d 590 [2d Dept 2007]). Thus, in Altschuler v Gramatan Mgt., Inc. , 27 AD3d 304 (1st Dept 2006), the court considered an untimely motion where it was based on the same arguments raised in the timely motion, and the same findings required dismissal on both motions. ( See also Conklin v Triborough Bridge Tunnel Auth. , 49 AD3d 320 [1st Dept 2008] [untimely cross-motion sought relief on same issues raised in timely motion]).
Here, Gigino argues that it has no duty to plaintiff and that it is not contractually obligated to maintain or repair the metal plate, whereas BPCA argues that it may not be held liable to plaintiff given the storm in progress and the absence of notice or evidence of negligence, and/or indemnification. Thus, while each defendant seeks dismissal of the complaint, their arguments in support are distinct, and a finding that Gigino has no duty to plaintiff or contractual obligation to maintain or repair the metal plate does not require a finding for BPCA. Consequently, BPCA's cross-motion for summary judgment is denied as untimely. ( Compare Filannino v Triborough Bridge Tunnel Auth. , 34 AD3d 280 [1st Dept 2006] [denying untimely motion addressed to causes of action not addressed in timely motion], with Lapin v Atlantic Realty Apts. Co., LLC , 48 AD3d 337 [1st Dept 2008] [untimely motion raised nearly identical issue to timely motion, i.e. lack of proof of defect and notice]).
V. CONCLUSION
Accordingly, it is hereby
ORDERED, that Gigino's motion for summary judgment is granted and the third-party complaint is dismissed; it is further
ORDERED, that BPCA's cross-motion for summary judgment is denied; and it is further
ORDERED, that the City's unopposed cross-motion for summary judgment is granted and the complaint is dismissed against it.
This constitutes the decision and order of the court.