Membreno v Anthony's Rest.

[*1] Membreno v Anthony's Rest. 2009 NY Slip Op 52202(U) [25 Misc 3d 1220(A)] Decided on October 27, 2009 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2009
Supreme Court, Queens County

Daniel Membreno, Plaintiff,

against

Anthony's Restaurant, et al., Defendants.



7941 2008



Appearances of Counsel:

Attorneys for defendant-movant Hack Realty, LLC: Purcell & Ingrao, PC, by Terrance J. Ingrao, Esq., Mineola, NY 11501

Attorneys for defendant Anthony's Restaurant: Gallo Vitucci & Klar, by Chad E. Sjoquist, Esq., NY, NY 10004

Charles J. Markey, J.

Upon the foregoing papers it is ordered that the motion is decided as follows:

Plaintiff in this negligence action seeks damages for personal injuries which he sustained as a result of a slip and fall accident on September 23, 2007, at a restaurant known as "Anthony's Restaurant," located at 222-02 Union Turnpike, Queens, New York (property/premises). Plaintiff was an employee of the restaurant and, at the time of the occurrence, plaintiff alleges to have slipped and fallen on an accumulation of water while mopping the floor in the course of his employment. Hack, the owner of the property, leased the premises to Bella Bianchis, Ltd., under a standard commercial store lease to operate a restaurant. The lease remains in full force and effect to date and was on the date of plaintiff's accident. Bella Bianchis, Ltd. operated the restaurant under the name "Anthony's Restaurant." Hack moves for summary judgment in its favor on the issues of contractual and common-law indemnification and for failure to procure insurance and to dismiss all claims against it. Plaintiff opposes the motion. [*2]

The branch of Hack's motion which is for summary judgment on its cross claim for contractual indemnification against Anthony's is denied since Hack did not establish, as a matter of law, that the plaintiff's accident resulted from a "careless, negligen[t] or improper conduct" on the part of Anthony's as required by the defense and indemnification clause of its contract with Anthony's (see Coque v Wildflower Estates Dev., 31 AD3d 484, 488-489 [2006] [indemnification clause required proof of negligence "or wrongful act or omission"]; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739 [2003]; Edwards v International Bus. Machs. Corp., 174 AD2d 863, 864-865 [1991]; cf. Pope v Supreme-K.R.W. Constr. Corp., 261 AD2d 523 [1999] [indemnification clause did not require proof of negligence]).

Also, there are triable issues of fact which preclude an award of summary judgment with respect to the common-law indemnification claim, as Hack failed to establish "that no negligent act or omission on its part contributed to the plaintiff's injuries, and that its liability is therefore purely vicarious" (Coque v Wildflower Estates Dev., supra at 489; see Amit v Hineni Heritage Ctr., 49 AD3d 574, 575 [2008]; Public Adm'r. of Kings County v 8 B.W., LLC, 40 AD3d 834, 835 [2007]; Medina v New York El. Co., 250 AD2d 656 [1998]; La Lima v Epstein, 143 AD2d 886, 888 [1988]).

Additionally, "[a] party seeking summary judgment based on an alleged failure to procure insurance naming that party as an additional insured must demonstrate that a contract provision required that such insurance be procured and that the provision was not complied with" (Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, supra at 739; see McGill v Polytechnic Univ., 235 AD2d 400, 402 [1997]). Since Hack failed to demonstrate that Anthony's breached the insurance procurement clause, that branch of Hack's motion which is for summary judgment on that cross claim is denied (see Kinney v Lisk Co., 76 NY2d 215, 218 [1990]; Lima v NAB Constr. Co., 59 AD3d 395 [2009]; Kim v D & W Shin Realty Corp., 47 AD3d 616, 620 [2008]).

Dated: October 27, 2009

J.S.C.