Imparato v AGB 15th St., LLC

[*1] Imparato v AGB 15th St., LLC 2009 NY Slip Op 52475(U) [25 Misc 3d 1237(A)] Decided on October 26, 2009 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2009
Supreme Court, New York County

Marylou Luther Imparato, Plaintiff,

against

AGB 15th Street, LLC, BENJAMIN LRJ, COMPOSITION WORKSHOP, DOO RI INC., MILK STUDIOS, INC., and THE DESIGN AND SOURCE HOLDING CO., LTD, SPORTS SUPPLY GROUP, INC., Individually, and d/b/a COLLEGIATE PACIFIC and/or BSN SPORTS, BSN SPORTS, INC., and COLLEGIATE PACIFIC, INC., Defendants.



107639/08

Carol R. Edmead, J.

In this personal injury action, defendant Milk Studios, Inc. ("Milk Studios") moves for summary judgment (CPLR 3212) dismissing the complaint of the plaintiff Marylou Luther Imparto ("plaintiff") and all cross-claims against it, and for contractual indemnification against defendant Doo Ri Enterprises s/h/a Doo Ri, Inc. and the Design Source Holding Co., Inc. (collectively, "Doo Ri" or the "Tenant").

In response, defendant AGB 15th Street, LLC ("AGB") cross moves for summary judgment (CPLR 3212) dismissing plaintiff's complaint, or in the alternative, for contractual indemnification against Milk Studios and Doo Ri.

Factual Background [FN1]

Plaintiff was allegedly injured on September 7, 2007, when she fell from her seat during a "fashion event" at "The Milk Gallery" located at 450 W. 15th Street, New York (the "building"). Plaintiff claims that the "fashion show seating" was in a "defective, dangerous and trap-like" condition. AGB is the owner of the building, and Milk Studios is the lessee of the portion of the building in which plaintiff was allegedly injured.

Milk Studios's Motion for Summary Judgment

Milk Studios argues that where "occupation and control" has been ceded to a tenant, such as Doo Ri, no liability can be found against the landlord, i.e., Milk Studios. Further, unless a landlord assumed a contractual duty to maintain the premises, the landlord is not liable for injuries caused by conditions arising from the tenant's possession, use and occupancy. Even if the landlord has retained a right to re-enter to make repairs, the mere retention of the right does [*2]not imply a duty to make the repairs.

According to the affidavit of David Hemphill, the Events Director of Milk Studios, the venue known as the "Milk Gallery" consists of 6,000 square feet of open exhibit space in the building that is rented for fashion shows and other events (the "subject space"). The floor itself is epoxy-coated concrete that is level and free of cracks or defects of any kind.

Milk Studios claims that prior the accident, Milk Studios entered into a short-term lease with Doo Ri. At the time Doo Ri took possession, the subject space was completely vacant and devoid of all seating and furnishings. The event on the date of the accident was the Doo Ri Spring 2008 show that was held during "Fashion Week." Doo Ri's set-up for the show included benches and risers, which were brought in and installed by Doo Ri. Mr. Hemphill generally observed industry-standard seating and equipment being carried into the space, but did not undertake to supervise the installation of the seating; he did not inspect, examine or test the risers and benches. Milk Studios reasonably expected that the risers and seating would be properly installed by the tenant or the tenant's contractors and/or agents. Pursuant to Article 4 of the short-term lease, Doo Ri agreed to maintain the premises and all fixtures and equipment in good repair and to make any repairs that might be required. Milk Studios undertook no duty to the plaintiff relative to the furniture, equipment and seating brought into the space by Doo Ri for plaintiff's use as a patron of the Doo Ri fashion show.

Milk Studios also contends that plaintiff alleges no structural/design defect, nor does she cite any violation of a specific code or statute section that might be applicable to Milk Studios. Plaintiff's claim arises entirely from the use of certain furniture which had been installed by Doo Ri in connection with the Doo Ri's fashion show. Doo Ri operated and maintained the event venue and contractually assumed a duty to maintain and make any repairs. Thus, argues Milk Studios, it may not be charged with any duty relative to the condition allegedly giving rise to the plaintiff's claim, and is entitled to summary judgment dismissing plaintiff's Complaint, along with any and all cross-claims against it.

Milk Studios also argues that it is entitled to indemnification and judgment over the Doo Ri, including legal fees and expenses incurred in the defense of this action. Pursuant to the short-term lease, Doo Ri agreed to indemnify Milk Studios for any claims of personal injury occurring "in or about the Demised Premises or any part thereof." The obligation is inclusive of legal fees and all other expenses incurred in the defense of a suit or action. Milk Studios argues that plaintiff's lawsuit arises from the Doo Ri's fashion show conducted at Milk Studios, and arose entirely from the Doo Ri's use and occupancy of that location, and thus, falls within the indemnification provision of the short-term lease. Milk Studios's previous request that Doo Ri's insurer take over and assume the defense of Milk Studios was declined.

AGB's Cross-Motion

In support of its cross-motion for summary judgment and contractual indemnification over and against Milk Studios and Doo Ri, AGB contends that pursuant to its lease with Milk Studios covering the subject space, Milk Studios obtained the premises "as is" and was responsible for maintenance of the premises (the "lease"). When AGB leased the space to Milk Studios and when Milk Studios leased the space to Doo Ri, it was completely devoid of all [*3]seating and furnishings. AGB argues that to establish a prima facie case of negligence, plaintiff must prove that it either created the condition that caused the plaintiff's accident, or had actual or constructive notice of the condition, and AGB had no knowledge of the allegedly defective seats.Further, a landlord is generally not liable for negligence with respect to the condition of the property after the transfer of possession and control to a tenant unless the landlord is either contractually obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect and make needed repairs at the tenants' expense, and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision.

AGB maintains that plaintiff alleged no structural/design defect, nor cites any violation of a specific code or statute section that might be applicable to AGB. As plaintiff's claim arises from the use of certain furniture installed by Doo Ri, AGB owed no duty to the plaintiff.

Further, under Section 16.02. of AGB's lease with Milk Studios, and under the short-term lease between Milk Studios and Doo Ri, Milk Studios and Doo Ri, respectively, agreed to indemnify AGB for any personal injury occurring in or around the demised premises. Thus, AGB argues, it is entitled to contractual indemnity and legal fees incurred in defense of this action as against Milk Studios and Doo RI pursuant to such leases, as AGB had no responsibility for the seating.

In partial opposition to Milk Studios's motion, AGB argues that if the motion by Milk Studios for summary judgment is granted, then AGB's motion for summary judgment must be granted since AGB is further removed from the alleged incident. If the Court does not grant AGB's motion for summary judgment then it cannot grant Milk Studios's motion since AGB is entitled to contractual indemnification from Milk Studios.

Plaintiff's Partial Opposition

Summary judgment dismissing plaintiff's complaint as to AGB at this juncture of the litigation is inappropriate, as critical and material questions of fact remain. Landlords owe a common-law duty to take precautions to protect tenants and their guests from foreseeable harm, and AGB is in the business of leasing commercial space to be used for galleries and shows. Thus, AGB should foresee that large groups of people would occupy the space and necessitate the installation of seating accommodations.

Although AGB states that it is undisputed that it had no knowledge of the allegedly defective bleacher seats, not a single deposition has gone forward to give the parties an opportunity to dispute anything in this case with oral testimony. Plaintiff has not had the opportunity to depose AGB as to notice issues such as, inter alia, AGB's presence at the gallery leading up to and during the show, if someone from the company was present when the furniture was delivered or installed, whether it was consulted regarding the furniture that was selected and installed, whether it made inspections of the premises, and whether it retained any control of the premises. And Mr. Hemphill's affidavit is silent on all of these critical issues, and thus does not eliminate all issues of fact. To dismiss the owner of the premises now would greatly prejudice the plaintiff in her efforts to properly prosecute this matter and recover for her injuries. Thus, AGB's motion seeking dismissal of the plaintiff's complaint should be denied.

Doo Ri's Opposition to Milk Studios's Motion

Doo Ri contends that the motion by Milk Studios is premature. The exact circumstances surrounding plaintiff's accident are unknown. Plaintiff alleges that she was injured as a result of [*4]a dangerous, defective and trap-like condition at the premises. Plaintiff alleges that the defendants failed to properly construct and/or maintain the fashion show seating at the subject premises.

Further, Milk Studios's request for judgment against Doo Ri based on the short-term lease is premature. There are numerous questions of fact which remain outstanding, including how the accident occurred, the precise cause of the subject accident, and whether Milk Studios set up of any benches and supervised any Doo Ri employees or other named entities in this action. Court-Ordered depositions of the parties are scheduled, and such depositions will elicit testimony regarding such issues. It may be discovered that the accident occurred from more than one cause, including a condition which existed on the premises. Therefore, argues Doo Ri, Milk Studios's motion should be denied with leave to renew upon completion of the depositions of all witnesses. Mr. Hemphill's statement that his duties included "generally overseeing the execution of events" raises a question as to whether an employee of Milk Studios supervised any portion of the fashion show. At the very least, Doo Ri is entitled to conduct the deposition of Mr. Hemphill to explore these issues. Additionally, there is no prejudice to the movant in denying the motion with leave to renew.

Doo Ri's Opposition to AGB's Cross-Motion

Although a short-term lease was entered into between Doo Ri and Milk Studios, no such agreement exists between AGB and Doo Ri. The lease between AGB and Milk Studios did not involve Doo Ri at the time this accident occurred. Therefore, argues Doo Ri, summary judgment in favor of AGB is premature. As stated above, the facts of this case have not been fully ascertained, and there are numerous questions of fact to be explored at depositions of the parties. Therefore, AGB's motion should also be denied as premature, as there is no prejudice since AGB can be given an opportunity to renew its motion upon the completion of discovery.

Milk Studios's Partial Opposition to AGB's Cross-Motion

To the extent relief is sought against Milk Studios, Milk Studios requests that AGB's cross-motion be denied. Milk Studios contends that inasmuch as its role in this case is limited to the leasing of an unfurnished, empty space, no liability may be found against Milk Studios in connection with the furniture that was brought into the space by the short-term lessee. Milk Studios is itself a tenant with respect to the building, and AGB, as the fee owner of the building, is no less entitled to summary judgment against the plaintiff in this matter. Since Milk Studios and AGB are both entitled to summary judgment, it is unnecessary determine the alternative relief sought by AGB for indemnification from Milk Studios and Doo Ri.

If the Court should deem it necessary to consider the respective requests for indemnity by the Milk Studios and AGB, it is to be noted that Doo Ri owes both of these parties a duty to indemnify pursuant to the short-term lease.

Discussion

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 [*5]NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390 [U] [Sup Ct New York County, 2003]). Thus, the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., supra ; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]). The failure of the proponent to make such a showing will result in the denial of the motion, regardless of the sufficiency of the opposing papers (Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 718 NYS2d 287 [1st Dept 2000] citing Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985, 599 NYS2d 526, 615 NE2d 1010; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (CPLR §3212[b]; Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman, supra at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). The opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (Kornfeld v NRX Tech., Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]).

"Negligence consists of a breach of a duty of care owed to another" (Di Cerbo by DiCerbo v Raab, 132 AD2d 763, 764, 516 NYS2d 995 [3d Dept 1987]). To establish a prima facie case of negligence, plaintiff must prove that the defendants owed her a duty of care, and breached that duty, and that the breach proximately caused her injury (see Solomon by Solomon v City of New York, 66 NY2d 1026, 1027, 499 NYS2d 392 [1985]; Wayburn v Madison Land Ltd. Partnership, 282 AD2d 301, 302, 724 NYS2d 34 [1st Dept 2001]). Absent a duty of care to the injured party, a defendant cannot be held liable in negligence (Palsgraf v Long Island R.R. Co., 248 NY 339 [1928]). The question of whether a duty of care exists is one for the court to decide. De Angelis v Lutheran Med. Ctr., 58 NY2d 1053, 462 NYS2d 626 [1983]; Stankowski v Kim, 286 AD2d 282, 730 NYS2d 288 [1st Dept], lv. dismissed 97 NY2d 677, 738 NYS2d 292 [2001]).

In order for an owner or possessor to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord or possessor created dangerous condition or had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646, 649 NYS2d 115 [1996] [citations omitted]; see Lupi v Home Creators, 265 AD2d 653, 696 NYS2d 291, lv. denied 94 NY2d 758, 705 NYS2d 5; Rodriguez v E & P Assos., 20 Misc 3d 1129, 872 NYS2d 693 [Supreme Court Bronx County 2008] ["absent evidence that an owner or possessor of a premises created dangerous condition or that said owner had prior notice of a defective condition, actual or constructive, said owner cannot be liable for an accident resulting from said dangerous condition"]). [*6]

However, an out-of-possession landlord is generally not liable for negligence with respect to the condition of the demised premises unless it "(1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision" (Emphasis added) (Reyes v Morton Williams Associated Supermarkets, Inc., 50 AD3d 496, 858 NYS2d 107 [1st Dept 2008] citing Vasquez v The Rector, 40 AD3d 265, 266, 835 NYS2d 159 [2007]).

Milk Studios's Motion for Summary Judgment and Indemnification

Plaintiff's Complaint alleges that Milk Studios was negligent in the " . . . operation, management, supervision, maintenance and control of" the subject space. Plaintiff's Bill of Particulars alleges that her injuries were caused by the "defective, dangerous and trap-like condition" of the "fashion show seating" at the subject space.

Contrary to the contention by Milk Studios, Milk Studios as "landlord," failed to establish, as a matter of law, that it ceded all "occupation and control" to Doo Ri (or is an out-of-possession landlord) so as to support a finding that it owed no duty to plaintiff. Pursuant to Article 4 of the short-term lease, Milk Studios agreed, "at its sole cost and expense, to keep and maintain the Demised premises and all fixtures and equipment therein, in good repair, order and condition, making all repairs and replacements thereto as may be required . . . ." Milk Studios's short-term lease indicates that Doo Ri was obligated "at its sole cost and expense, to keep and maintain the Demised Premises . . . in good repair, order and condition, making all repairs and replacements thereto as may be required . . . ." However, there is no express language indicating that Milk Studios would not be required to make any repairs in or to the demised premises, as it is required to do under its own lease with AGB. Moreover, although Milk Studios transferred possession of the subject space to Doo Ri, Mr. Hemphill's affidavit indicates that Milk Studios was present at the subject space observing the set up of Doo Ri's event. Therefore, Milk Studios's submissions failed to eliminate the issue of whether Milk Studio retained sufficient control of the subject space to be liable for the dangerous condition which caused plaintiff's accident, or relinquished sufficient control so as to support its claim that it owed no duty to plaintiff.

The Court notes that in the event Milk Studios is not deemed an out-of-possession landlord, then Milk Studios, as possessor of the subject space, must establish as a matter of law that it maintained the property in question in a reasonably safe condition and that they neither created the allegedly dangerous condition existing thereon nor had actual or constructive notice thereof in order to prevail on a summary judgment motion (see Mokszki v Pratt, 13 AD3d 709, 786 NYS2d 222 [3d Dept 2004]). Here, Mr. Hemphill's affidavit is insufficient to establish, as a matter of law, that Milk Studios maintained the property in question in a reasonably safe condition and that it did not have actual or constructive notice of the dangerous condition of the seating. It is undisputed that Doo Ri, as tenant of the subject space at the time of plaintiff's accident, installed the fashion show seating at its event. Doo Ri does not dispute Milk Studios's assertion that Milk Studio did not install the seating at the subject space. However, although Doo Ri brought and installed the seating that allegedly caused plaintiff's accident, and Mr. Hemphill states that he did not supervise the installation of or inspect, examine or test the seating, Mr. Hemphill acknowledges that he observed the seating and equipment being carried [*7]into the space. Although plaintiff alleges no structural/design defect, nor cites any violation of a specific code or statute section that might be applicable to Milk Studios, plaintiff is entitled to depose Mr. Hemphill as to his observations at the time the seating was being installed to determine whether his observations gave rise to actual or constructive notice on the part of Milk Studios of the dangerous seating condition at the subject space. Since Mr. Hemphill's affidavit fails to eliminate issues of fact as to Milk Studio's notice of the dangerous seating condition at the subject space, the motion by Milk Studios for summary judgment dismissing plaintiff's Complaint is denied, at this juncture.

As to Milk Studios's motion for indemnification, Article 6 of the short-term lease provides that:

. . . Tenant [Doo Ri] will further indemnify, defend and hold Landlord [Milk Studios] and Owner harmless from and against all claims, liability, . . . damages, expenses and judgments arising from any loss of the occupation of the Demised Premises . . . and . . . that arise out of or in connection with (I) the performance, use, occupancy, repair, maintenance or control of the Demised Premises by Tenant . . . or (ii) any act or omission of Tenant . . . .

Thus, Doo Ri agreed to indemnify Milk Studios for any claims of personal injury occurring "in or about" the subject space.

A "party is entitled to full contractual indemnification provided that the intention

to indemnify can be clearly implied from the language and purposes of the entire agreement and

the surrounding facts and circumstances"' (Torres v Morse Diesel Intl., Inc., 14 AD3d 401 [1st

Dept 2005]). Although the contractual indemnification provision applies since plaintiff was allegedly injured during the period of Doo Ri's fashion event when the space was leased to Doo Ri, and where the alleged injury was caused by seating provided and installed by Doo Ri, the issue as to Milk Studios's negligence remains. Therefore, indemnification by Doo Ri in favor of Milk Studios is premature at this juncture (see Cook v Consolidated Edison Co. of NY, Inc., 51 AD3d 447, 859 NYS2d 117 [1st Dept 2008] [where issues of fact exist concerning owner's and tenant's negligence, the motion court correctly denied, as premature, owner's motion for summary judgment for contractual indemnification against tenant]).

AGB's Cross-Motion for Summary Judgment and Indemnification

The lease between AGB and Milk Studios clearly establishes that AGB was an out-of-possession landlord, and Doo Ri and Milk Studios failed to submit any documentary evidence or affidavit from its representatives to the contrary (see Doyle v B3 Deli, Inc., 224 AD2d 478, 637 NYS2d 783 [2d Dept 1996] [where the lease obligated codefendants/tenants to maintain the premises, and appellant affidavit established that after transferring possession to the codefendants, the appellant had no involvement with the maintenance or repair of the premises and did not cause the alleged slippery condition, appellant was entitled to summary judgment even though the deposition of the appellant has not occurred]). And, deposition testimony is unnecessary to establish the fact that AGB was an out-of-possession landlord, since the subject lease was attached to counsel's affirmation (see DeLeon v Port Authority of New York and New Jersey, 306 AD2d 146, 761 NYS2d 54 1st Dept 2003] [stating that "attaching the subject leases to the attorney's affirmation was sufficient to admit the leases" on a motion for summary judgment]). [*8]

Here, the express and unambiguous language in the lease between AGB and Milk Studios indicates that AGB is not contractually obligated to make repairs or maintain the premises. Pursuant to Article 14, "Maintenance and Repairs," the AGB "shall not be required to furnish any services or facilities or to make any repairs or alterations in or to the Demised Premises . . . ." Further, Milk Studios agreed at its sole cost and expense, to keep and maintain the Demised Premises, Tenant's improvements therein, the distribution of all Building systems serving the Demised Premises, any independent systems serving the Demised Premises, and all signs of Tenant erected inside and outside of the Demised Premises in good repair, order and condition, making all repairs and replacements thereto as may be required . . . .

Under Article 17 entitled "Access," AGB had access to reenter to either "show the Demised Premises to any prospective purchasers or mortgagees" or tenants, or upon 24-hours notice, to make repairs or perform work to the Demised Premises; however, nothing in Article 17 imposed upon AGB "any duty on the part of [AGB] to make any such . . . repairs or perform any such work which Tenant is obligated to perform . . . ."

Further, plaintiff's complaint and bill of particulars fail to allege that liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision, so as to render any contractual right to reenter, inspect and make needed repairs a basis for liability against AGB. In this latter regard, plaintiff's complaint is completely silent as to any claim of any structural or design defect at the building or subject space, and her bill of particulars does not allege that there was any structural or design defect at the building or space. Plaintiff's bill of particulars alleges, in pertinent part, that 6.Defendant(s), their agents, servants and/or employees, were negligent, careless and reckless in causing, permitting and allowing the fashion show seating at the aforesaid premises to be, become and remain in a defective, dangerous and trap-like condition; in failing and neglecting to inspect, properly assemble, properly construct, repair, replace, refurbish, restore and/or properly maintain the fashion show seating at the subject premises which were in an unsafe condition; and in failing and neglecting to warn or apprise the invitees, and more particularly the Plaintiff herein, of the dangerous and defective condition then and there existing in and upon the seating.7.Defendants violated any and all sections of the Industrial Codes and Building Code of the City and State of New York, and any and all other applicable sections concerning the safe and proper seating in a building used for public purposes.

(Emphasis added).

Any speculation that the accident might have occurred from more than one cause, including a condition which existed on the premises is insufficient to warrant further discovery. Further, there is no indication, or inference that may be drawn, that AGB was present at the gallery leading up to and during the show, if someone from AGB was present when the seating was delivered or installed, or whether AGB was consulted regarding the seating that was selected and installed, whether it made inspections of the premises, or whether it retained any control of [*9]the premises. The leases at issue all indicate to the contrary. And Mr. Hemphill's affidavit is silent on all of these critical issues, and thus does not eliminate all issues of fact plaintiff's complaint and bill of particulars are silent as to any defective or dangerous condition of any portion of the subject space, except for the seating itself. That plaintiff's complaint alleges that she was injured as a result of a dangerous, defective and trap-like condition at the premises does not warrantfurther discovery or defeat AGB's prima facie showing that it is not liable to the plaintiff. Plaintiff's Bill of Particulars specifies that her injuries were allegedly caused by a dangerous and defective condition of the seating at the premises, and not by any structural or design defect at the premises. AGB, as an out-of-possession landlord with a limited right of reentry cannot be held liable for plaintiff's injuries, since its lease with Milk Studios placed responsibility for everyday maintenance and repairs on the Milk Studios (see Pavon v Rudin, 254 AD2d 143, 679 NYS2d 27 [1st Dept 1998]). Therefore, AGB is entitled to summary judgment dismissing the plaintiff's Complaint as asserted against it.

Furthermore, AGB, as "[a] party to a contract who is a beneficiary of an indemnification provision[,] must prove itself to be free of negligence" (see Suh v Fleet Bank, N.A., 5 Misc 3d 1012, 798 NYS2d 713 [Supreme Court Bronx County 2004]). AGB demonstrated its freedom from negligence and is thus entitled to contractual indemnification

Section 16.02 of the lease between AGB and Milk Studios, provides in relevant part that . . . Tenant [Milk Studios] agrees to indemnify and hold harmless Landlord, for its offices, directors, partners, employees and agents, and any mortgagee or lessor of the Demised Premises or any portion thereof, form and against any and all claims, actions damages liabilities, losses, costs and expenses, including reasonable attorneys' fees, that arise out of or in connection with (I) the performance, use, occupancy, repair, maintenance or control of the Demises Premises or any part thereof or the property used by Tenant, or (ii) any act or omission of Tenant or Tenant's agents, employees, contractors, concessionaires, licensees, customers or invitees, or (iii) any material default, breach, violation or non-performance of this Lease or any provision hereof by Tenant, or (iv) any injury to person or property or loss of life sustained in or about the Demised Premises or nay part thereof. Tenant shall, at its own cost and expense, pay any and all legal fees and other expenses incurred . . . .

Similarly, as indicated above, in Article 6 of the short-term lease between Milk Studios and Doo Ri agreed to indemnify, defend and hold the "Owner" AGB harmless from and against all claims, liability, . . . damages, expenses and judgments arising from any loss . . . that arise[s] out of or in connection with (i) the performance, use, occupancy, repair, maintenance or control of the Demised Premises by Tenant . . . or (ii) any act or omission of Tenant . . . ." It cannot be disputed that plaintiff's claim herein arises out of and in connection with Doo Ri's use of the subject space.

Therefore, having established its freedom from negligence for plaintiff's injuries, and that plaintiff's claim and action against AGB arises out or in connection with "any injury to person . . . sustained in or about the Demised Premises," AGB is entitled to contractual indemnification by Milk Studios.

Conclusion

Based on the foregoing, it is hereby [*10]

ORDERED that the motion by defendant Milk Studios, Inc. for summary judgment (CPLR 3212) dismissing the complaint of the plaintiff Marylou Luther Imparto and all cross-claims against it, and for contractual indemnification against defendant Doo Ri Enterprises s/h/a Doo Ri, Inc. and the Design Source Holding Co., Inc. (collectively, "Doo Ri" or the "Tenant") is denied, at this juncture, as premature; and it is further

ORDERED and ADJUDGED that the cross-motion by defendant AGB 15th Street, LLC for summary judgment (CPLR 3212) dismissing the complaint of the plaintiff Marylou Luther Imparto, or in the alternative, for contractual indemnification against Milk Studios and Doo Ri, is granted, in its entirety, the complaint as asserted against AGB 15th Street, LLC is hereby severed and dismissed, and AGB 15th Street, LLC is entitled to contractual indemnification against Milk Studios and Doo Ri; and it is further

ORDERED that AGB 15th Street, LLC serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: October 26, 2009________________________________

Hon. Carol Robinson Edmead, J.S.C.

In accordance with the accompanying Memorandum Decision, it is hereby

ORDERED that the motion by defendant Milk Studios, Inc. for summary judgment (CPLR 3212) dismissing the complaint of the plaintiff Marylou Luther Imparto and all cross-claims against it, and for contractual indemnification against defendant Doo Ri Enterprises s/h/a Doo Ri, Inc. and the Design Source Holding Co., Inc. (collectively, "Doo Ri" or the "Tenant") is denied, at this juncture, as premature; and it is further

ORDERED and ADJUDGED that the cross-motion by defendant AGB 15th Street, LLC for summary judgment (CPLR 3212) dismissing the complaint of the plaintiff Marylou Luther Imparto, or in the alternative, for contractual indemnification against Milk Studios and Doo Ri, is granted, in its entirety, the complaint as asserted against AGB 15th Street, LLC is hereby severed and dismissed, and AGB 15th Street, LLC is entitled to contractual indemnification against Milk Studios and Doo Ri; and it is further [*11]

ORDERED that AGB 15th Street, LLC serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court. Footnotes

Footnote 1: The Factual Background is taken, in large part, from the moving papers of Milk Studios.