Leidner v Kevin & Stephen Corp.
Annotate this CaseDecided on December 23, 2009
Supreme Court, New York County
ROBYN LEIDNER, Plaintiff,
against
KEVIN & STEPHEN CORP. and NYRU, INC. d/b/a DEKK RESTAURANT, Defendants.
114238/06
Defendant NYRU (DEKK) attorney
Lawrence A Doris, Esq.
Flynn Gibbons & Dowd 80 Maiden Lane
New York, NY 10038
212 962-2450
Defendant Kevin & Stephen Corp attorney
David L. Wong, Esq.
485 Lexington Avenue - 7th Floor
New York, NY 10017
917-778-6661
Debra A. James, J.
Defendant Kevin & Stephen Corp. (Kevin) moves for summary judgment declaring that defendant NYRU, Inc. d/b/a Dekk Restaurant (NYRU) must contractually indemnify Kevin with respect to claims asserted by plaintiff in this action, and must reimburse to Kevin's insurer all attorneys' fees, costs and disbursements incurred in defending Kevin in this action.
Plaintiff in this personal injury action sought recovery of damages as a result of an accident that occurred on May 10, 2006 while plaintiff was walking on a sidewalk in front of 134 Reade Street, New York, New York. Plaintiff's claim was settled on February 19, 2009 following the commencement of the trial of this action on February 17, 2009. The parties stipulated that plaintiff had established a prima facie claim against Kevin, and that a sum of $50,000 was fair and reasonable compensation for plaintiff's damages. Left unsettled was the issue of contractual indemnification between Kevin and NYRU, the landlord and ground floor tenant, respectively, of 134 Reade Street at the time of the accident.
In bringing this motion, Kevin argues that it is entitled to summary judgment against NYRU for contractual indemnification. Kevin states that, pursuant to their lease, NYRU, as tenant, is required to contractually indemnify and hold harmless Kevin from any and all liability that Kevin has to plaintiff and from any and all costs and disbursements, including attorney's fees, incurred in connection with defending Kevin in this action.
Kevin contends that the terms of the lease are unambiguous and that their interpretation is a
question of law which this court may determine on a motion for summary judgment. Kevin
argues that under Section 8 of the lease, NYRU agreed in pertinent part that it would:
at Tenant's sole cost and expense, to maintain general public liability insurance in
standard form in favor of [*2]Owner and Tenant against claims
for bodily injury . . . occurring in or upon the demised premises . . . [and that it would] 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
attorney's fees paid, suffered or incurred as a result of any breach by Tenant, Tenant's agent,
contractors, employees, invitees, or licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agent, contractors,
employees, invitees or licensees.
Under Section 4 of the lease, NYRU
agreed that :
Tenant shall, throughout the term of the 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 and other casualty, excepted.
Under Section 6
of the lease, NYRU agreed that at all times during its possession of the demised premises it
would:
at [its] sole cost and expense, . . . promptly comply with all present and future
laws, orders and regulations of all ... municipal and local governments. . . which shall impose
any violation, order or duty upon Owner or Tenant with respect to the demised premises, and
with respect to the portion of the sidewalk adjacent to the demised premises, if the demised
premises are on the street level, whether or not arising out of the Tenant's use or manner of use
thereof.
Under Section 30 of the lease, NYRU agreed that it:
shall at Tenant's expense, keep the demised premises clean and in order . . . and if
the demised premises are situated on the street floor, Tenant shall, at Tenant's own expenses,
make all repairs and replacements to sidewalks and curbs adjacent thereto, and keep said
sidewalks and curbs free from snow, ice, dirt and rubbish.
Kevin argues that the lease contains a broad indemnification provision that does not violate Section 5-321 of the General Obligations Law because the parties agreed to use insurance as the vehicle for allocating the risk of liability to third parties [*3]as between themselves. Kevin states that NYRU had agreed, pursuant to the lease, to comply with the provisions of Sections 7-210 and 19-152 of the New York City Administrative Code regarding the maintenance and repair of the sidewalk in front of 134 Reade Street. In this case, there was an elevation difference between two adjourning flags of pavement, due to the roots of the tree growing in the adjacent tree well. This condition is said to have resulted in plaintiff's fall. Kevin again refers to Section 30 of the lease, which provides that, because the demised premises was on the street level, NYRU would, at its sole cost and expense, make all repairs and replacements to the sidewalk and curbs adjacent thereto.
In interpreting the lease terms, Kevin claims that a specific provision in the lease, which states that the Tenant must make all repairs and replacements to the sidewalk, governs over a general provision, that states the Tenant is to take good care of the demised premises and the adjacent sidewalk.
In opposition, NYRU contends that at the time of the accident Kevin had a policy issued by Travelers Insurance Company and that because Kevin has been indemnified by that insurer Kevin's cross claim for indemnification must be dismissed. NYRU asserts that indemnification is limited to damages for which Kevin will not be reimbursed by insurance. NYRU argues that it is unreasonable to interpret the lease to say that a landlord would limit the tenant's indemnity obligation for one item of damages, costs and expenses, to amounts not reimbursed by insurance and not the other items in the enumerated list. Kevin counters that the phrase "for which Owner shall not be reimbursed by insurance" as found in Section 8 does not obviate NYRU's indemnification obligation because Kevin has its own insurance. Kevin asserts the above quoted phrase, given the punctuation separating it from the words "liabilities, obligations, damages, penalties and claims," only modifies the words "costs and expenses." Thus, given the structure of the entire sentence and its punctuation, Kevin maintains that NYRU must indemnify Kevin for any costs and expenses for which Kevin shall not be reimbursed by insurance, while still indemnifying Kevin for everything else referred to in the indemnification provision.
NYRU argues that, with the settlement of this action, it is clear that plaintiff demonstrated Kevin's negligence, and did not contemplate a claim of negligence against NYRU. Because there was no stipulation that NYRU was negligent, and no agreement to apportion fault against NYRU, NYRU avers that the issue of NYRU's negligence is not left to the court. NYRU argues that it cannot be liable for Kevin's negligence.
The case Diaz v Lexington Exclusive Corp., 59 AD3d 341 (1st Dept 2009) is dispositive of the relief sought here. In that case, [*4] The lease between the . . landlord, and . . . tenant, requires the latter to procure liability insurance for the former's benefit. The [landlord] who had obtained their own insurance as of the date of the subject accident, allege that [tenant] breached the lease's indemnification clause insofar as it provides that the 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." [Tenant] contends that the indemnification clause allows for the [landlord's] reimbursement under any insurance policy, including their own, in order for [tenant] to be relieved of its contractual duty to indemnify.
Id. at 342.
The Court went on to hold that
"[R]eimbursed by insurance," as used above, means just that, without regard to any
specific source of coverage. It is axiomatic that a contract is to be interpreted so as to give effect
to the intention of the parties as expressed in the unequivocal language employed. Courts should
not strain to find contractual ambiguities where they do not exist. For example, in Arteaga v 231/249 W 39 St. Corp. (45
AD3d 320 [1st Dept 2007]), this Court found no ambiguity in a lease and dismissed a
landlord's claim for indemnity under a provision that similarly obligated the tenant to indemnify
the landlord solely for costs "for which Owner shall not be reimbursed by
insurance."
Diaz, 59 AD3d at 342-343 (internal citations and
quotations partially omitted).
The indemnification clause here is substantially similar to that in Diaz and Kevin has failed to establish its entitlement to indemnification where it has already received the benefit of insurance, albeit its own.
Accordingly, it is
ORDERED and ADJUDGED that defendant Kevin & Stephen Corp.'s motion for summary judgment is DENIED, and upon a search of the record defendant NYRU, Inc., is GRANTED summary judgment dismissing Kevin & Stephen Corp.'s cross-claim for contractual indemnification.
This is the decision and order of the court.
Defendant NYRU (DEKK) attorney
Lawrence A Doris, Esq.
Flynn Gibbons & Dowd
[*5]
80 Maiden Lane
New York, NY 10038
212 962-2450
Defendant Kevin & Stephen Corp attorney
David L. Wong, Esq.
485 Lexington Avenue - 7th Floor
New York, NY 10017
917-778-6661
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