Summary
holding that although the indemnification clause purports to indemnify the landlord for its own negligence, the clause does not violate GOL § 5-321 since the parties allocated the risk to insurance, and there was no evidence that the landlord's was negligent
Summary of this case from Bacik v. JEP Rest. CorpOpinion
2014-05-20
Alan PODEL, Plaintiff–Respondent–Appellant, v. GLIMMER FIVE, LLC, Defendant–Appellant–Respondent, Warren A. Whyte, et al., Defendants. Glimmer Five, LLC, Third Party Plaintiff–Appellant–Respondent, v. Lilipanka LLC, doing business as The Mojo Lounge, Third Party Defendant–Respondent.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant-respondent. Reibman & Weiner, Brooklyn (Marc Reibman of counsel), for respondent-appellant.
Gannon, Rosenfarb, Balletti & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant-respondent. Reibman & Weiner, Brooklyn (Marc Reibman of counsel), for respondent-appellant.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York (Dennis J. Monaco of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, ANDRIAS, SAXE, CLARK, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 10, 2013, which denied defendant landlord's motion for summary judgment seeking dismissal of the complaint and the third-party defendant tenant's cross claim, and contractual indemnification against third-party defendant tenant, and denied plaintiff's cross motion for summary judgment on the issue of constructive notice, unanimously modified, on the law, defendant landlord's motion for summary judgment granted, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.
Plaintiff, an employee of third-party defendant tenant's restaurant, alleges that, while carrying, with both hands, a heavy pot containing hot liquid, he fell and was injured as he was descending a dangerous spiral staircase located between the restaurant's basement prep kitchen and its ground floor main kitchen. Liability does not lie against defendant out-of-possession landlord because the claimed riser, tread and handrail violations were not significant structural defects ( see Quing Sui Li v. 37–65 LLC, 114 A.D.3d 538, 981 N.Y.S.2d 14 [1st Dept.2014]; Drotar v. 60 Sweet Thing, Inc., 106 A.D.3d 426, 427, 964 N.Y.S.2d 150 [1st Dept.2013]; Kittay v. Moskowitz, 95 A.D.3d 451, 452, 944 N.Y.S.2d 497 [1st Dept.2012], lv. denied20 N.Y.3d 859, 2013 WL 518556 [2013] ). The staircase was not an “interior stair” as defined in § 27–132 of the NYC Administrative Code ( see Quing Sui Li, 114 A.D.3d 538, 981 N.Y.S.2d 14;Centeno v. 575 E. 137th St. Real Estate, Inc., 111 A.D.3d 531, 975 N.Y.S.2d 335 [1st Dept.2013] ). Nor were the claimed violations of former §§ 27–127 and 27–128 specific statutory safety provisions that may serve as predicates for defendant landlord's liability ( see Centeno, 111 A.D.3d 531, 975 N.Y.S.2d 335). It is therefore immaterial whether landlord had notice of the allegedly dangerous condition or retained a right to reenter ( see Nielsen v. 300 E. 76th St. Partners, LLC, 111 A.D.3d 414, 415, 974 N.Y.S.2d 246 [1st Dept.2013]; Devlin v. Blaggards III Rest. Corp., 80 A.D.3d 497, 498, 916 N.Y.S.2d 580 [1st Dept.2011], lv. denied16 N.Y.3d 713, 2011 WL 1755603 [2011] ).
We note that nothing in the record supports the possibility that the landlord built the allegedly offending staircase.
The lease's indemnification clause does not violate General Obligations Law § 5–321. Although it purports to indemnify the landlord for its own negligence, the parties permissibly allocated the risk to insurance, regardless of whether indemnification was limited to its proceeds ( see Gary v. Flair Beverage Corp., 60 A.D.3d 413, 415, 875 N.Y.S.2d 4 [1st Dept.2009] [ citing Great N. Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 419, 823 N.Y.S.2d 765, 857 N.E.2d 60 (2006) ] ). Moreover, the clause is valid as applied, as there is no view of the evidence that the landlord was negligent ( see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795 n. 5, 658 N.Y.S.2d 903, 680 N.E.2d 1200 [1997];Guzman v. 170 West End Ave. Assoc., 115 A.D.3d 462, 981 N.Y.S.2d 678 [1st Dept. 2014] ). The third party defendant is therefore liable for the costs of defendant's defense.