Opinion
No. 26902/10.
12-23-2014
Jane O'DONNELL and James O'Donnell, Plaintiff, v. A.R. FUELS, INC. and Mill Basin Convenience Store Corp., Defendant.
James F. Sullivan, PC, for Plaintiff. Jonathan S. Visotzky, Esq, for Defense. Gordon & Silber, PC, for Co–Defendant.
James F. Sullivan, PC, for Plaintiff.
Jonathan S. Visotzky, Esq, for Defense.
Gordon & Silber, PC, for Co–Defendant.
Opinion
YVONNE LEWIS, J.
The Defendant A.R. Fuels, Inc. (A.R.) moves, sequence No.5, for an order, pursuant to CPLR 3212, granting it summary judgment as to its cross claim against the defendant Mill Basin Convenience Store Corp. (Mill Basin), awarding it costs and expenses incurred in defending this action and dismissing Mill Basin's cross claim. Mill Basin moves, in sequence # 6, for an order granting summary judgment dismissing the claims of Jane O'Donnell and James O'Donnell (collectively, the plaintiffs) as against it, awarding it costs and disbursements and dismissing A.R.'s cross claim. A.R. cross-moves, in sequence # 7, for an order declaring that Mill Basin must provide it defense, indemnification and reimbursement of costs and attorney's fees and granting summary judgment dismissing the plaintiffs' claims as against it.
Background And Allegations
A.R. owns real property at 2102 Mill Avenue, in Brooklyn (the Property). Mill Basin is a tenant on the Property and uses it to operate a convenience store. On August 18, 2010, Jane O'Donnell tripped and fell on the sidewalk adjoining the Property, resulting in a broken hip and other injuries (the Accident). The plaintiffs commenced this action on November 1, 2010 and alleged causes of action for premises liability and loss of consortium. The plaintiffs contended that the Accident resulted from defects in the sidewalk abutting the Property, which A.R. and Mill Basin knew of, yet failed to repair. A.R., in its verified answer, asserted a cross claim against Mill Basin for contractual indemnity. Mill Basin, in its verified answer, asserted a cross claim against A.R. for common-law indemnity. A.R. subsequently commenced a third-party action for contractual indemnity, common-law indemnity and contribution against Michael Gleizer (Gleizer) and M. Shahid Kazi (Kazi), each a former operator of the store on the Property.
A.R. Fuels, Inc.'s motion
(1)
A.R. now moves, in sequence # 5, for an order, pursuant to CPLR 3212, granting summary judgment as to its cross claim against Mill Basin, awarding it costs and expenses incurred in defending this action and dismissing Mill Basin's cross claim. It argues that the lease governing Mill Basin's tenancy, in conjunction with associated riders, required Mill Basin to perform all repairs to the Property, including the abutting sidewalks. A.R. also contends that the lease terms require Mill Basin to defend and indemnify A.R. and to reimburse its costs and legal fees. Although the lease was originally created between A.R. and Mill Basin Grocery Corp. (MBG), A.R. urges that a subsequent lease assignment bound Mill Basin to all terms and covenants of the original lease. A.R. acknowledges that the 10–year lease term ended in 2008, but contends that Mill Basin, as a holdover tenant, remains bound to all lease covenants. A.R. also asserts that changes in the ownership of Mill Basin had no effect on the duties created by the lease.
A.R. submits a copy of a lease, apparently executed by Kazi as MBG's president (the Lease). The Lease reflected a term of ten years, beginning March 1, 1998 and ending February 29, 2008. Article 4 of the Lease stated, inter alia, “Owner shall maintain and repair the public portions of the building, both exterior and interior....Tenant shall, throughout the term of this lease, take good care of the demised premises and the fixtures and appurtenances therein, and the sidewalks adjacent thereto, and at its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and condition, reasonable wear and tear, obsolescence and damage from the elements, fire or other casualty excepted.” Article 8 provided, in part, “Owner or its agents shall not be liable for ... any injury or damage to persons or property resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Owner, its agents, servants or employees. Owner or its agents will not be liable for any such damage caused by other tenants or persons in, upon or about said building.... 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, Tenant's agent, contractors, employees, invitees, or licensees, of any covenant on condition of this lease, or the carelessness, negligence or improper conduct of the Tenant, Tenant's agents, contractors, employees, invitees or licensees. .... In case any action or proceeding is brought against Owner by reason of any such claim, Tenant, upon written notice from Owner, will, at Tenant's expense, resist or defend such action or proceeding by counsel approved by Owner in writing, such approval not to be unreasonably withheld.”
Article 24 of the Lease stated, inter alia, “The failure of Owner to seek redress for violation of, or to insist upon the strict performance of any covenant or condition of this lease or of any of the Rules or Regulations set forth or hereafter adopted by Owner, shall not prevent a subsequent act which would have originally constituted a violation from having all the force and effect of an original violation. The receipt by Owner of rent and/or additional rent with knowledge of the breach of any covenant of this lease shall not be deemed a waiver of such breach and no provision of this lease shall be deemed to have been waived by Owner unless such waiver be in writing signed by Owner.” Article 30 stated, in part, “Tenant shall, at Tenant's expense, keep demised premises clean and in order, to the satisfaction of Owner, and 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 keep said sidewalks and curbs free from snow, ice, dirt and rubbish.” Finally, article 39 provided that “[t]he covenants, conditions and agreements contained in this lease shall bind and inure to the benefit of Owner and Tenant and their respective heirs, distributees, executors, administrators, successors, and except as otherwise provided in this lease, their assigns.”
A.R. submitted a rider to the lease (the First Rider), also apparently signed by Kazi on MBG's behalf. The introduction to the First Rider stated that all paragraphs therein were incorporated into the lease and stipulated, “If there is any conflict between the provisions of this rider and the remainder of the lease, the provisions of this rider shall govern.” Article 50 of the First Rider stated, in part, “Tenant shall indemnify and hold Landlord harmless from and against any and all liability, claim, loss, damage or expense, including reasonable attorneys' fees, by reason of any injury to or death of any person or persons, or injury or damage to property, or otherwise, arising from or in connection with the occupancy or use of the demised premises or any work, installation or thing whatsoever done in, at or about the demised premises, or resulting from any default by tenant in the payment or performance of Tenant's obligations under this lease or from any act, omission or negligence of Tenant or any contractors, agents, employees, customers, subtenants, licensees, guests or invitees of Tenant.”
A.R. also submitted a copy of an additional rider to the Lease (the Second Rider), again apparently signed by Kazi on MBG's behalf. Article 7 of the Second Rider stated, “Tenant shall keep sidewalk in front of demised premises free and clear of snow, ice and debris at all times.” Article 14 stated, “Notwithstanding anything to the contrary herein contained in the printed form of this lease, it is agreed and understood that the landlord is not responsible for any repairs to the demised premises. If the landlord determines that certain repairs are required at the premises to maintain the premises, tenant agrees to comply with landlord's demands. All repairs including but not limited to electrical, plumbing, heating, interior and exterior, structural or nonstructural, will be the tenant's responsibility.”
Article 19 similarly provided, “Notwithstanding any contrary provision of this lease it is specifically understood and agreed that (a) landlord shall not be required to make any repairs, improvements or expenditures of any kind or nature with respect to the demised premises, irrespective of the necessary [sic] or cause of the same, and all such repairs, improvements and expenditures in connection with the demised premises are to be made by tenant, at its cost and expense.If, however, tenant shall fail or refuse to make such repairs or expenditures as may be required in or to the demised premises, then landlord, at landlord's option, may make such repairs and/or expenditures and the expense of same shall be paid by tenant as additional rent under this lease, upon demand.”
Article 23 contained another indemnity clause: “Subject to the provisions of this lease, tenant covenants and agrees that from and after the commencement of his lease or any renewal or extension thereof, Landlord shall not be liable or responsible for damages for any personal injury or injuries, death(s), damages, or losses to any person(s) or property that may be suffered or sustained by tenant or any of their respective agents, servants, employees, patrons, customers, invites, visitors licensees, department and concessionaires or by any other person or person in, on or about, the Demised Premises by tenant or any of their respective agents, servants, employees, patrons, customers, invitees, visitors, licensees, department and concessionaires. [¶] “Tenant covenants and agrees to indemnify landlord and hold landlord free and harmless against any and all claims arising out of any alterations, changes improvements, and repairs (structural as well as nonstructural) or [sic] the building upon the demised premises....”
Finally, A.R. submitted a copy of an assignment and assumption of lease, apparently executed in conjunction with a sale of all assets and rights, which assigned the lease from MBG to Mill Basin (the Assignment). T he Assignment was, seemingly, executed by Kazi, on behalf of MBG, and Gleizer, as president of Mill Basin. The Assignment stated, “Assignee agrees to pay the rent promptly and perform all of the terms of the Lease as of the date of this Assignment. Assignee assumes full responsibility for the Lease as if Assignee signed the Lease originally as Tenant.”
(2)
Mill Basin, in opposition, argues that A.R. fails to submit any admissible evidence establishing the Lease, the First Rider, the Second Rider and the Assignment (collectively, the Underlying Documents) or demonstrating that Mill Basin is bound by them. It urges that A.R.'s motion relies upon unsigned deposition transcripts and that no witness has authenticated the Underlying Documents. A.R ., Mill Basin stresses, failed to produced an executed copy of the Lease during three years of discovery and first introduced it on this motion. Mill Basin further alleges that Ronald Shields (Shields), the former president of A.R., could not confirm at deposition whether any lease applied on the day of the Accident. It additionally contends that Mohammed Nadeem (Nadeem), who purchased Mill Basin from Gleizer in 2006, never executed or ratified a lease and had never seen any of the Underlying Documents before this litigation. At the time of Accident, Mill Basin argues, it was simply a month-to-month tenant, subject to no written lease. Mill Basin urges that, in 2008, it paid A.R. only $2500 monthly, whereas, if the Lease terms had controlled, the monthly rent should have been significantly higher. Mill Basin contends that it cannot be treated as a holdover tenant, still bound by the Lease terms, as Nadeem never executed any assignment or assumption of the Lease.
Finally, Mill Basin alleges that, even if it were bound by Underlying Documents, it still bears no duty to indemnify A.R., as A .R.'s own negligence caused the Accident. Mill Basin argues that Administrative Code of City of New York § 7–210 imposes a nondelegable duty upon a property's owner to maintain the abutting sidewalk. It further contends that, though it cleared snow, ice, garbage and debris from the sidewalk, both Shields and Michael Stern (Stern), A.R.'s comptroller, admitted that A.R. remained responsible for structural repairs and had, in fact, paid $25,000 to the New York City Department of Transportation (the DOT) for repairs it made to a portion of the sidewalk abutting the Property. Mill Basin urges that both Nadeem and the DOT had notified A.R. of defects in the portion of sidewalk where the Accident occurred, but that A.R. failed to repair them. It similarly recounts that some party, without any knowledge or action by Mill Basin, repaired those defects after the Accident. It argues that General Obligations Law § 5–321 renders void the indemnity clauses in the Underlying Documents, as they would require Mill Basin to indemnify A.R. for its own negligence.
(3)
A.R., in reply, argues that the deposition transcripts accompanying its motion are admissible, as it sent the transcripts to the deposed, with notices to execute, as required by CPLR 3116, and as more than 60 days had elapsed thereafter. It urges that the affidavit of its current president, Christopher Westad (Westad), which accompanies its motion in sequence # 7, authenticates the Underlying Documents as binding upon Mill Basin. It argues that Mill Basin cannot claim surprise at the executed versions of these documents, as A.R. submitted such versions with a previously withdrawn summary judgment motion in June 2012 and as Mill Basin had notice of the documents' terms since February 2011. A.R. urges that Nadeem purchased Mill Basin in 2006, during the Lease's 10–year period, and that no assignment was required for its terms to remain effective during that period or afterward, when Mill Basin became a holdover tenant. It additionally contends that the Lease explicitly does not require Mill Basin to indemnify A.R. for its own negligence.
Mill Basin's Motion
(1)
Mill Basin moves, in sequence # 6, for an order, pursuant to CPLR 3212, granting summary judgment dismissing the plaintiffs' claims as against it, awarding it costs and disbursements and dismissing A.R.'s cross claim. Mill Basin relies essentially on the same arguments that it raised in opposing A.R.'s motion (sequence # 5), stressing that Administrative Code § 7–210 renders an owner's duty to repair abutting sidewalks nondelegable and that A.R. paid for sidewalk repairs both before and after the Accident. It argues that the statute of frauds would bar enforcing the Underlying Documents. Mill Basin contends that the indemnity clauses, even if effective, entitle A.R. to no recovery, as A.R. maintained a $1–million insurance policy and fails to demonstrate any out-of-pocket damages. Furthermore, Mill Basin argues that, even if the Underlying Documents bind it, such contractual duties permit no direct liability to the plaintiffs, who were not privy to those agreements. As the plaintiffs do not allege that Mill Basin negligently created any condition that resulted in the Accident, it urges that their claims must be dismissed as against it.
(2)
The plaintiffs, in opposition to Mill Basin's motion, argue that the Accident occurred because both A.R. and Mill Basin neglected their duties to repair the sidewalk abutting the Property. They urge that Administrative Code § 7–210 merely renders property owners liable for damages resulting from negligent maintenance of abutting sidewalks and does not relieve tenants of their common-law duty to rectify dangerous conditions. The Plaintiffs argue that the Underlying Documents placed the burden of sidewalk repair on Mill Basin, that A.R. has proven them binding on Mill Basin by submitting executed copies and that the terms remained binding even during Mill Basin's holdover tenancy.
(3)
A.R. opposes Mill Basin's motion with essentially the same arguments it made in support of motion sequence # 5.
(4)
Mill Basin, in reply, urges that § 7–210 creates a nondelegable duty for property owners, not tenants, to maintain sidewalks. It reiterates that A.R.'s agents admitted paying for sidewalk repairs and urges that it assumed no comprehensive or exclusive duty to make such repairs. It again contends that no witness has authenticated the Underlying Documents, and it asserts that the inconsistent maintenance clauses therein create ambiguity, which must be construed against A.R. as the drafter. Westad, it asserts, cannot authenticate the Underlying Documents, as A.R. did not employ him when they were purportedly executed and as he therefore lacks sufficient personal knowledge.
A.R.'s Cross Motion
(1)
A.R. cross-moves, in sequence # 7, for an order declaring that Mill Basin must provide it defense, indemnification and reimbursement of costs and attorney's fees and granting summary judgment, under CPLR 3212, dismissing the plaintiffs' claims as against it. A.R. reiterates its arguments that the Underlying Documents required Mill Basin, as a holdover tenant, to make all repairs to the Property, including the abutting sidewalks, and required Mill Basin to indemnify A.R. for any related damages and legal fees. As sidewalk maintenance was solely Mill Basin's responsibility, A.R. urges that the plaintiffs' claims must be dismissed as against it.
A.R. supports its motion with an affidavit by Westad, who states that A.R. executed the Lease and riders with MBG in 1998 and that the copies included are true and accurate. Westad's affidavit is accompanied by unsigned copies of the Lease and the riders and a copy of the Assignment apparently signed by Kazi and Shields.
(2)
Mill Basin, in opposition, argues that the cross motion should not be considered, as A.R. filed it after the court-ordered, December 27, 2013 deadline for summary judgment motions and as it constitutes an unwarranted, successive summary judgment motion. Mill Basin urges that this motion is not truly a cross motion. It otherwise repeats and restates its arguments made in relation to motion sequences # 5 and # 6.
(3)
The plaintiffs, in opposition, argue that A.R., as the Property's owner, bore a nondelegable duty, under § 7–210, to ensure proper maintenance of the abutting sidewalk. They further contend that, as the DOT sent notice of sidewalk defects to A.R. in 2007, it cannot deny notice of such defects.
(4)
A.R. replies that its motion should be considered, despite its untimeliness, as a cross motion to Mill Basin's timely motion, made on identical grounds. It urges that the Westad affidavit is necessary for resolving the motion and that it sufficiently authenticates the Underlying Documents. It argues that Mill Basin assumed comprehensive and exclusive responsibility for sidewalk maintenance and that, accordingly, A.R. can bear no liability for the Accident. A.R. characterizes the DOT notice of sidewalk defects as uncertified and inadmissible.
Discussion
The Summary Judgment Standard
A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR 3212[b] ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ). Failure to make such a showing requires denying the motion, regardless of the sufficiency of any opposition (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] ). The opposing party overcomes the movant's showing only by introducing “evidentiary proof in admissible form sufficient to require a trial of material questions” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).
Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503 ). Nevertheless, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a summary judgment motion (Zuckerman, 49 N.Y.2d at 562 ). “The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues” (Ruiz v. Griffin, 71 AD3d 1112, 1115 [2010] [internal quotation marks omitted] ).
A.R. Fuels, Inc.'s motion
A.R.'s summary judgment motion, in sequence # 5, depends heavily on the terms of the Underlying Documents in an effort to establish Mill Basin's responsibility for sidewalk maintenance and its duty to defend and indemnify A.R. The admissibility of written material depends on its authentication by evidence that it was in fact made or signed by a particular person (see Fairlane Fin. Corp. v. Greater Metro Agency, Inc., 109 AD3d 868, 870 [2013] ; NYCTL 1998–2 Trust v. Santiago, 30 AD3d 572, 573 [2006] ; see also Jerome Prince, Richardson on Evidence § 9–101 [Farrell 2008] ). A signed document may generally be authenticated by a certificate of acknowledgment, under CPLR 4538, (see Fairlane Fin. Corp., 109 AD3d at 870 ; Stein v. Doukas, 98 AD3d 1026, 1029 [2012] ; Richardson on Evidence § 9–102[c] ), testimony by one with personal knowledge of the execution (see Patterson v. State of New York, 44 Misc.3d 1230[A], 2014 N.Y. Slip Op 51382[U], *9–*10 [Ct Cl 2014]; Malloy v. V.W. Credit Leasing, Ltd., 21 Misc.3d 1110[A], 2008 N.Y. Slip Op 52035[U], *2 [Sup Ct, Bronx County 2008]; Richardson on Evidence § 9–103[a] ) or by comparison of handwriting or circumstantial evidence (see People v. Jackson, 117 AD3d 966, 967 [2014]; People v. Bryant, 12 AD3d 1077, 1079 [2004], lv denied 4 NY3d 761 [2005] ; Tuscan Realty Corp. v. O'Neill, 189 Misc.2d 349, 350 [Sup Ct, App Term, 2d Dept 2001] ; Richardson on Evidence § 9–103[c]–[d] ).
Here, A.R. fails to authenticate the alleged signatures important to establishing the binding effect of the Underlying Documents on Mill Basin: that of Kazi on the Lease, the First Rider and the Second Rider and of Gleizer on the Assignment. Although the documents each provide a location for a notary's acknowledgment of the signatures, only Kazi's signature on the Assignment was so notarized. The underlying documents were, apparently, shown to Shields during his deposition, but his testimony made clear that he lacked sufficient personal knowledge to authenticate the signatures needed to bind Mill Basin. When questioned about the signatures on the Lease, Shields stated, “The tenant Mill Basin Grocery Corp, was signed by an individual that is at this point difficult to read. On further review, his name is Shahid Kazi ...” (Transcript of October 21, 2013 Deposition of Ronald Shields at 26). Shields further stated that he could not recall Kazi (id. at 26–27). The remainder of Shields's testimony clearly suggests that his descriptions of the Underlying Documents and their effect was premised on his review of them at the deposition rather than on any preexisting, personal knowledge.
Westad's affidavit, which accompanied motion sequence # 7, also fails to authenticate any of the signatures necessary to bind Mill Basin, as the only signatures appearing on the attached copies of the Underlying Documents are those of Kazi and Shields on the Assignment.It seems, in any case, that Westad could not have personal knowledge necessary to authenticate executions purportedly made more than 10 years ago.A.R.'s motion depends entirely upon a finding that the Underlying Documents bind Mill Basin. As these documents have not been authenticated, they remain inadmissible, and A.R.'s summary judgment motion, in sequence # 5, must be denied. A.R. shall, however, be granted leave to renew this motion upon producing evidence to properly authenticate the requisite signatures.
Mill Basin's Motion
Mill Basin argues, in support of its summary judgment motion, that, even if A.R. authenticates the Underlying Documents, Mill Basin could still bear no liability, either to A.R. or to the plaintiffs directly. Mill Basin first contends that Nadeem, its present owner, never saw, signed or ratified any of the Underlying Documents and that, accordingly, they do not bind Mill Basin. This argument is without merit. Nadeem is not a party to this action and no one characterizes the Underlying Documents as binding against him personally. Instead, A.R. seeks to show that these documents bind Mill Basin, a corporate entity. Although no documentation of this transaction has been submitted, no party disputes that, at some time in 2006, Nadeem acquired ownership and control of Mill Basin from Gleizer. Assuming, therefore, that A.R. can demonstrate the authenticity of Gleizer's signature on the Assignment, its terms, as well as those of any authenticated lease documents, would continue to bind Mill Basin, despite any change of ownership (see Seneca Wire & Mfg. Co. v. Leach & Co., 247 N.Y. 1, 6 [1928] [“(a)ll corporations act by agents, and when a transaction is carried through in the name of the corporation by its agents, the corporation is bound thereby providing the agents have authority to act”]; see also Odell v. 704 Broadway Condominium, 284 A.D.2d 52, 57 [2001] ).
Mill Basin also argues that it was not a holdover tenant and that it leased the Property on a purely month-to-month, unwritten basis. Assuming that the Underlying Documents were valid, the Lease term would have expired as of February 29, 2008. The Lease contained an option to extend its term for an additional five years, but while the parties executed no such extension, Mill Basin continued to operate its store on the Property and pay monthly rent to A.R. Real Property Law § 232–c stipulates that, in such circumstances, where a tenant remains beyond the end of its lease without forming another agreement, a month-to-month holdover tenancy results (see Samson Mgt., LLC v. Hubert, 92 AD3d 932, 933 [2012] ). Appellate case law demonstrates that, under common law, a holdover tenancy continues under the same terms and covenants created by the expired lease (see City of New York v. Pennsylvania R.R. Co., 37 N.Y.2d 298, 300–301 [1975] ; Matter of Casamento v. Juaregui, 88 AD3d 345, 347 n. 1 [2011] ; Logan v. Johnson, 34 AD3d 758, 759 [2006] ; McClenan v. Brancato Iron & Fence Works, 282 A.D.2d 722, 722 [2001] ). Accordingly, assuming authentication of the Underlying Documents, Mill Basin occupied the Property on the date of the Accident as a holdover tenant, subject to the same terms and covenants (other than duration) that bound it during the Lease's term.
A contract must be construed in accordance with the parties' intent, and “[t]he best evidence of what parties to a written agreement intend is what they say in their writing' “ (Schron v. Troutman Sanders LLP, 20 NY3d 430, 436 [2013] [alteration in original], quoting Greenfield v. Philles Records, 98 N.Y.2d 562, 569 [2002] ). Principles of freedom of contract demand that a court enforce clear and unambiguous contractual terms unless the result is illegal or contrary to public policy (see Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 NY3d 624, 629 [2006] ; Village Taxi Corp. v. Beltre, 91 AD3d 92, 99–100 [2011] ).
The terms of the Lease would clearly require a bound tenant occupying the Property's street level to perform needed repairs and replacements to the sidewalk abutting the Property. Whereas articles 4 and 30 of the Lease express slightly different maintenance duties to be assumed by a tenant, they seem to create no contradiction in effect. Instead, article 30 seems simply to expand the article–4 maintenance duties for tenants who lease the Property's street level. To the extent that article 4's representations that A.R. shall maintain public portions of the Property and that a tenant shall make nonstructural repairs could be read as limiting a tenant's repair duties, Article 19 of the Second Rider would seemingly void any such limits. That clause stated that “[n]otwithstanding any contrary provision of this lease it is specifically understood and agreed that (a) landlord shall not be required to make any repairs, improvements or expenditures of any kind or nature with respect to the demised premises” (emphasis added), and it further stipulated that “all such repairs, improvements and expenditures in connection with the demised premises are to be made by tenant, at its cost and expense” (emphasis added).
Consequently, depending on which documents are established as authentic and binding on Mill Basin, it is possible that Mill Basin will be found to have assumed comprehensive and exclusive responsibility for all maintenance of the Property, including the abutting sidewalk. Under those circumstances, Mill Basin could bear direct liability to the plaintiffs (see Stiver v. Good & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007] ; Church v. Callanan Indus., 99 N.Y.2d 104, 110–112 [2002] ; Abramson v. Eden Farm, Inc., 70 AD3d 514, 514 [2010] [finding potential duty of care owed by tenant to the trip-and-fall plaintiff because of lease clause requiring tenant to perform all sidewalk repairs and replacements]; see generally Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138–140 [2002] )., Given potential liability on the part of Mill Basin, summary judgment dismissing the claims against Mill Basin must be denied.
A clearly stated contractual agreement to provide indemnity is generally enforceable (see Del Vecchio v. Danielle Assoc., LLC, 108 AD3d 583, 586 [2013] ; see also Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491–492 [1989] ). General Obligations Law § 5–321 normally renders a lease's indemnity clause void if it would require a tenant to indemnify the owner for the owner's own negligence (see Ben Lee Distribs., Inc. v. Halstead Harrison Partnership, 72 AD3d 715, 716 [2010] ; Mendieta v. 333 Fifth Ave. Assn., 65 AD3d 1097, 1100 [2009] ), but an indemnity clause is still enforceable when liability is to a third party and the clause was negotiated between sophisticated parties in conjunction with a clause requiring insurance procurement (Bacon v. 4042 Austin Blvd., LLC, 120 AD3d 727, 728 [2014] ; Karanikolas v. Elias Taverna, LLC, 120 AD3d 552, 556 [2014] ; DiBuono v. Abbey, LLC, 95 AD3d 1062, 1064 [2012] ; see also Mendieta, 65 AD3d at 1100 ).
Here, the Lease, the First Rider and the Second Rider each contain a distinct indemnity clause. The Lease's indemnity clause explicitly could not apply to damage resulting from negligence by A.R. or its agents and would merely require a tenant to indemnify A.R. for damage caused by the tenant's negligence or breach of duty under the Lease. The First Rider's indemnity clause is written more broadly and in a way that leaves its meaning vague, but would not explicitly require a tenant to indemnify A.R. for its own negligence. The intended scope of the Second Rider's indemnity clause is similarly difficult to discern, but seems to limit itself to damage “by tenant or any of their respective agents, servants, employees, patrons, customers, invitees, visitors, licensees, department and concessionaires.” Even if the riders' indemnity clauses were found to be void and unenforceable, however, the Lease's indemnity clause would survive.
Finally, the Leases's no-waiver clause and the portion of article 19 of the Second Rider that permitted, but did not require, A.R. to make property repairs, would prevent Mill Basin from demonstrating that either A.R.'s payment for prior sidewalk repairs or its acceptance of rent payments lower than stipulated by the Lease could constitute a general waiver of the relevant terms in the Underlying Documents (see IG Second Generation Partners, LP v. Kaygreen Realty Co., 22 AD3d 463, 465 [2005] ). Accordingly, Mill Basin fails to demonstrate that, if the Underlying Documents bind it, it would still bear no duty to defend and indemnify A.R. Administrative Code of City of New York § 7–210 assigns property owners a statutory duty to maintain the sidewalks abutting their properties (see Stephen v. Brooklyn Pub. Lib., 120 AD3d 1221, 1221 [2014] ; Reyderman v. Meyer Berfond Trust # 1, 90 AD3d 633, 634 [2011] ). Though courts have characterized this duty as nondelegable (see Bonifacio v. El Paraiso Food Mkt., Inc., 109 AD3d 454, 455 [2013] ; Reyderman, 90 AD3d at 634 ), no available precedent suggests that it would preclude an owner from seeking indemnity for damages related to sidewalk maintenance from a party who contracted, but failed, to provide such maintenance. Hence, Mill Basin's summary judgment motion must be denied.
Motion Sequence # 7
Summary judgment motion deadlines “are not options, they are requirements, to be taken seriously by the parties” (Miceli v. State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004] ). Nevertheless, “an untimely motion or cross motion for summary judgment may be considered on its merits if there is a timely, pending motion for summary judgment made by another party on nearly identical grounds' “ (Giambona v. Hines, 104 AD3d 811, 812 [2013], quoting Grande v. Peteroy, 39 AD3d 590, 592 [2007] ; see also Das v. Sun Wah Rest., 99 AD3d 752, 754–755 [2012] ; Lennard v. Khan, 69 AD3d 812, 814 [2010] [explaining that “the nearly identical nature of the grounds supporting both motions serves as good cause sufficient to permit review on the merits of the untimely motion” (internal quotation marks omitted) ] ).
The portion of motion sequence # 7 seeking summary judgment dismissing the plaintiffs' claims against A.R., though made after the court-established deadline, concerns issues nearly identical to those addressed in Mill Basin's motion, in sequence # 6, seeking summary judgment dismissing the plaintiffs' claims as against it. A .R.'s motion must be denied, however, given A.R.'s statutory duty to maintain abutting sidewalks created by Administrative Code § 7–210. Although comprehensive and exclusive assumption of a maintenance duty may permit the finding of premises liability for a tenant or contractor, no available case law indicates that such an assumption would relieve the owner of direct liability, particularly where the maintenance duty is statutory and nondelegable (see Bonifacio, 109 AD3d at 455 ; Reyderman, 90 AD3d at 634 ). Hence, the portion of motion sequence # 7 seeking summary judgment dismissing the plaintiffs' claims as against A.R. must be denied.
The portion of A.R.'s motion in sequence # 7 that seeks declaratory judgment relies, like motion sequence # 5, on the binding effect of the Underlying Documents. Consequently, it shall also be denied with leave to renew upon admissible evidence authenticating those documents. Accordingly, it is
ORDERED that A.R.'s summary judgment motion in sequence # 5 is denied in its entirety, with leave to renew upon introduction of admissible evidence authenticating the Lease or other controlling documents; and it is further
ORDERED that Mill Basin's summary judgment motion, in sequence # 6, is denied in its entirety; and it is further
ORDERED that the portion of A.R.'s motion in sequence # 7 seeking declaratory judgment is denied, with leave to renew upon introduction of admissible evidence authenticating the Lease or other controlling documents, and the portion of A.R.'s motion in sequence # 7 seeking summary judgment dismissing the plaintiffs' claims as against it is denied in its entirety.
This constitutes the decision and order of the court.