Lopez v Guei Shun Shiau

Lopez v Guei Shun Shiau 2011 NY Slip Op 07500 Decided on October 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2011
Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
5825 114050/08 590306/09

[*1]Maria Isabel Lopez, Plaintiff,

v

Guei Shun Shiau, et al., Defendants. Guei Shun Shiau, Third-Party Plaintiff-Appellant, Sheba Ethiopian Restaurant, Inc., etc., Third-Party Defendant-Respondent.




D'Amato & Lynch, LLP, New York (Bill V. Kakoullis of
counsel), for appellant.
Faust Goetz Schenker & Blee LLP, New York (Lisa De
Lindsay of counsel), for respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 8, 2010, which, in this action for personal injuries sustained by plaintiff when she allegedly slipped and fell on an uneven sidewalk abutting property owned by defendant- third-party plaintiff Guei Shun Shiau and leased to defendant- third-party defendant Sheba Ethiopian Restaurant, Inc. d/b/a Queen of Sheba Ethiopian Restaurant, to the extent appealed from, denied Shiau's motion for summary judgment on his cross claim for contractual indemnity against Sheba, unanimously affirmed, without costs.

Issues of fact exist as to whether the lease requires Sheba to indemnify Shiau for the type of injury or damages at issue here. This Court will not read into the contract an indemnity obligation that is not "unmistakably" present in the lease agreement (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 417 [2006]). Here, the lease's indemnification and insurance provisions are ambiguous, and thus denial of summary judgment was appropriate. We reject Shiau's contention that the facts of this case are similar to those of Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153 [1977]).

We have considered Shiau's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011

CLERK