Medina v JP Morgan Chase Bank, N.A.
Annotate this CaseDecided on June 4, 2012
Supreme Court, Queens County
Cecilia Medina, Plaintiff,
against
JP Morgan Chase Bank, N.A., American Realty Sunnyside LLC, Dynasty Meat Corp., Food Dynasty and Washington Mutual Bank, F.A., Defendants.
354/10
Bernice D. Siegal, J.
The following papers numbered 1 to 15 read on this motion for an order pursuant to CPLR §3212 granting summary judgment on defendant American Realty Sunnyside's cross-claim against defendant Dynasty Meat Corp., for contractual indemnification, together with all attorneys' fees and defense costs and on this cross-motion for an order pursuant to CPLR §3212 denying summary judgment dismissing plaintiff's case upon the grounds that there are material issues of fact as to whether the alleged defect is trivial.
It is hereby ordered that the motion and cross-motion are resolved as follows:
Defendant American Realty Sunnyside ("ARS") moves for an order pursuant to CPLR §3212 granting summary judgment on its cross-claim against defendant Dynasty Meat Corp. ("Dynasty"), upon the grounds of contractual indemnification, for an order awarding reimbursement of attorney's fees and defense costs incurred by ARS in defending within action. ARS also moves for an order dismissing plaintiff's complaint with regards to ARS as a defendant and any cross-claims against ARS.
Defendant Dynasty moves for an order pursuant to CPLR §3212 granting summary judgment dismissing plaintiff's case upon the grounds that the alleged defect possesses none of the characteristics of a trap, a snare, or a nuisance and that the alleged defect is too trivial to be actionable.
Facts
This is an action for personal injuries that plaintiff Cecilia Medina ("Medina"), an 80 year old woman, allegedly sustained as a result of an accident on December 16, 2008, at approximately 6:30 P.M., on a sidewalk adjacent to 46th Street and approximately 80' north of the southeast corner of Greenpoint Avenue, Sunnyside, New York. Medina alleged that she was walking with her daughter on the way to attend Tuesday night prayer service at 7:30 P.M. when she allegedly tripped [*2]and fell due to a raised brick on the sidewalk. She testified at her deposition that after the accident her daughter noticed the raised brick. Medina admitted at her deposition to having walked over this sidewalk at least three times a week for forty years and every Tuesday night for thirty years to attend the church service, and had never previously tripped, despite the sidewalk's deterioration over the last five years.
The sidewalk where said accident occurred is adjacent to the premises owned by ARS and occupied pursuant to a lease agreement dated October 20, 2006 by Dynasty. The lease agreement states that: 1. the leased premises includes the entire building known as 46-02 Queens Boulevard a/k/a 46-05 Greenpoint Avenue, Sunnyside, New York; 2. Dynasty is to indemnify, to protect, to defend, and to save ARS from and against all claims, suits, costs, interest and expenses, including counsel fees incurred arising from or in connection with any liability or claim for any injury to any person or persons occurring in, on, or about the premises from Dynasty's negligence, except in instances of gross negligence or willful misconduct; 3. that Dynasty, at its expense, is to maintain and to repair the storefront of the premises and the sidewalks adjacent to the premises, but not replace the sidewalks; and 4. Dynasty, at its expense, is to maintain insurance in favor of both Dynasty and ARS against claims for bodily injury occurring in, on, or about the premises.
Contentions
ARS contends in its motion that both indemnification and insurance clauses are valid and enforceable, and, pursuant to these provisions, Dynasty is obligated to contractually indemnify ARS. ARS also contends in its motion that, as an out-of-possession landlord, it had no responsibility for repairing the raised brick on the sidewalk abutting Dynasty's premises that allegedly caused plaintiff's accident.
Dynasty contends in its cross-motion that the alleged defect possesses none of the characteristics of a trap, a snare, or a nuisance and that the alleged defect is too trivial to be actionable, and the complaint should be dismissed. ARS's motion is granted in part and denied in part and Dynasty's cross-motion is denied in its entirety as more fully set forth below.
Discussion
I. Whether the Lease Provision Requires Dynasty to Indemnify ARS
Whether the Lease Provision Is Valid and Enforceable
ARS argues that the lease between ARS and Dynasty is valid and enforceable despite containing both indemnification and insurance procurement clauses. In opposition, Dynasty asserts that the indemnification provision in the lease is unenforceable pursuant to General Obligations Law ("GOL") § 5-321.
GOL § 5-321 provides, in pertinent part, that:
[e]very covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.
GOL § 5-321 provides that an agreement to exempt a lessor from its own negligence is void, except it does not preclude the enforcement of an indemnification provision and concomitant insurance [*3]procurement provision. (See Castano v. Zee-Jay Realty Co., 55 AD3d 770 [2d Dept 2008].) "In such circumstances, the landlord is not exempting itself from liability to the victim for its own negligence," instead, "the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance." (Castano, 55 AD3d at 772.) An indemnification clause "coupled with an insurance procurement provision . . . obligates the tenant to indemnify the landlord for its share of liability, and that such a lease provision" is valid. (Great Northern Insurance Co. v. Interior Construction Corp., 7 NY3d 412, 415 [2006].)
The lease between ARS and Dynasty contains both an indemnification clause in section 12.2 and an insurance procurement provision in section 11.3. The lease's "Tenant Indemnification" section (section 12.2) provides, in pertinent part, that:
Tenant agrees, irrespective of whether the Tenant shall have been negligent in connection therewith, to indemnify, protect, defend and save harmless, Landlord . . . from and against any and all liabilities (statutory or otherwise), claims, suits, . . . costs . . . interest and expenses (including counsel and other professional fees and disbursements incurred in any action or proceeding), to which Landlord . . . may be subject or suffer arising from, or in connection with: (i) any liability or claim for any injury to . . . any person . . . occurring in, on or about the Premises, except to the extent of gross negligence or willful misconduct of Landlord. Dynasty is to indemnify, to protect, to defend, and to save ARS from and against all claims, suits, costs, interest and expenses, including counsel fees incurred arising from or in connection with any liability or claim for any injury to any person or persons occurring in, or about the Premises from Dynasty's negligence, except in instances of gross negligence or willful misconduct of Landlord . . . or (iv) any act, omission, carelessness, negligence or misconduct of Tenant . . . . In case any action or proceeding shall be brought against Landlord . . . by reason of any such claims, Tenant, upon notice from Landlord, shall resist and defend such action or proceeding on behalf of Landlord . . . by counsel for the insurer (if such claim is covered by insurance) or otherwise by counsel reasonably satisfactory to Landlord . . . .
The insurance procurement clause in section 11.3 provides, in pertinent part, that:
Tenant shall, at Tenant's sole cost and expense, obtain, maintain, and keep in force and effect a policy of commercial general liability insurance (including . . . personal injury . . . ) under which Tenant is named as the insured and Landlord . . . [is] named as additional insureds, which insurance shall provide primary coverage without contribution from any other insurance carried by or for the benefit of the Landlord . . . and shall protect said parties against all liability occasioned by an occurrence insured against . . . .
According to the lease's indemnification provision, Dynasty agreed to indemnify ARS in a claim for any injury to any person, such as plaintiff here, irrespective of Dynasty's negligence, except in instances of ARS's gross negligence or willful misconduct, and for instances occurring in, on, or about the premises. The indemnification clause does not exempt ARS from liability to plaintiff, but allocates the risk of liability onto Dynasty. In addition, Dynasty agreed to obtain and to maintain commercial general liability insurance, including personal injury insurance, where both Dynasty and ARS are named as the insureds, pursuant to the lease's insurance procurement clause. In essence, the lease does not violate GOL § 5-321 because the indemnification clause coupled with the insurance procurement clause does not exempt ARS from liability, but instead, obligates Dynasty to indemnify [*4]ARS for its share of liability. Therefore, the lease between ARS and Dynasty does not violate GOL §5-321.
Whether the Lease Provides "Unmistakable Intent" for Indemnification
ARS argues that the lease agreement provides an "unmistakable intent" for Dynasty to indemnify ARS in the lease's indemnification and insurance procurement clauses. In opposition, Dynasty asserts that ARS failed to make a prima facie showing that the lease reflected the parties "unmistakable intent" that Dynasty was to indemnify ARS for plaintiff's alleged injuries.
The right to indemnify a party for its own negligence will only be granted if the lease states the intention to be indemnified "in specific and unequivocal terms'." (Hogeland v. Sibley, Lindsay, & Curr Co., 42 NY2d 153, 158 [1977], quoting Thompson Starrett Co. v. Otis Elevator Co., 271 NY 36, 41 [1936].) Furthermore, the Court of Appeals defined that courts need to "look to the unmistakable intent of the parties' rather than the semantic stereotypes with which an agreement may be phrased." (Id. at 159, quoting Levine v. Shell Oil Co., 28 NY2d 205, 212 [1971].) "It suffices that the agreement between the parties connotes an intention to indemnify [which] can be clearly implied from the language and purposes of the entire agreement'." (Hogeland, 42 NY2d at 159, quoting Margolin v. New York Life Insurance Co., 32 NY2d 149, 153 [1973].) Thus, courts have construed contracts as granting indemnity provided that "the contractual language evinces an unmistakable intent' to indemnify." (Great Northern Insurance Co., 7 NY3d at 417.)
Here, the lease's "Tenant Indemnification Clause" states that Dynasty agreed to indemnify ARS in a claim for any injury to any person, such as plaintiff, on its leased premises irrespective of Dynasty's negligence, except in instances of ARS's gross negligence or willful misconduct, and for instances occurring in, on, or about the premises. The lease's indemnification clause states this right of contractual indemnification in specific and unequivocal terms; thus, showing that Dynasty agreed to indemnify ARS with "unmistakable intent" in the lease covering instances where an individual is injured in, on, or about the premises. Therefore, pursuant to the lease, Dynasty is obligated to indemnify ARS provided that plaintiff was injured in, on, or about the premises. Accordingly, Dynasty's argument that the lease does not provide an "unmistakable intent" for Dynasty to indemnify ARS fails.
Whether Plaintiff Was Injured in, on, or About the Premises
ARS argues that plaintiff's alleged accident arose in, on, or about the premises that was leased by Dynasty pursuant to the lease between ARS and Dynasty; and because the location of plaintiff's alleged accident is within Dynasty's leased premises, ARS has a right to be contractually indemnified by Dynasty. ARS further argues that summary judgment should be granted on ARS's cross-claim against Dynasty based on contractual indemnification. In opposition, Dynasty asserts that ARS cannot claim indemnification because public sidewalks adjacent to the building are not within the leased premises. The ultimate issue in determining whether ARS is entitled to contractual indemnification is whether plaintiff's injury occurred in, on, or about the premises; in other words, whether the elevated brick on the sidewalk adjacent to Dynasty's building is part of the premises leased by Dynasty from ARS.
The lease defines the premises as "[t]he entire building known as 46-02 Queens Boulevard a/k/a 46-05 Greenpoint Avenue, Sunnyside, NY." As indicated above, the "Tenant Indemnification" clause of the underlying lease is triggered when any injury or claim occurring "in, on, or about the [*5]Premises." According to plaintiff's deposition, plaintiff testified that the accident occurred adjacent to the building leased by Dynasty. "A phrase such as in, on or about the Premises' is not to be read as limited in its spatial description to in the demised premises,' for then the words or about' would have no meaning." (Pritchard v. Suburban Carting Corp., 90 AD3d 729, 731 [2d Dept 2011], quoting Hogeland, 42 NY2d at 159.) Furthermore, "[t]his phrase of art, [is] frequently used synonymously to mean around' or on the outside of'." (Pritchard, 90 AD3d at 731, quoting Hogeland, 42 NY2d at 159.) Here, plaintiff allegedly slipped and fell on an elevated brick on the sidewalk that was adjacent to the building leased by Dynasty. Plaintiff's accident occurred adjacent to the premises as defined in the lease; in other words, the accident occurred "around" or "on the outside of" the building. Thus, plaintiff's accident occurred about the premises, and Dynasty must indemnify ARS in plaintiff's case. Therefore, ARS's motion for summary judgment on its cross claims against Dynasty for contractual indemnification is granted.
Conclusion
In summary, the lease's indemnification and insurance procurement provisions are valid and enforceable; the indemnification and insurance procurement provisions provide an "unmistakable intent" that ARS has a contractual right to be indemnified by Dynasty; and ARS has the contractual right to be indemnified from Dynasty for plaintiff's injuries that occurred about the premises leased by Dynasty. Therefore, based on these reasons, ARS's motion for summary judgment on its cross-claim against Dynasty is granted.
II. Whether ARS Is Liable as an Out-Of-Possession Landlord
ARS argues that because Dynasty leases the premises where plaintiff's alleged accident occurred from ARS, ARS is an out-of-possession landlord and is not liable for plaintiff's alleged injuries in the within action; and accordingly, plaintiff's complaint and any cross-claims against ARS should be dismissed. In opposition, Dynasty asserts that summary judgment cannot be granted because there are questions of fact to be resolved by a jury. Dynasty argues that ARS is liable because a landowner has a statutory obligation pursuant to NYC Administrative Code §7-210 to maintain the sidewalk in a reasonable safe condition; that Dynasty has no obligation to fix the alleged elevated brick because the lease states under section 9.1 that the "[t]enant shall not be obligated to replace the sidewalks adjacent" to the premises; and that an out-of-possession landlord, such as ARS, may be found liable for failure to repair a dangerous condition.
Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition. (See Peralta v. Henriquez, 100 NY2d 139 [2003]; Atehortua v. Lewin, 90 AD3d 794 [2d Dept 2011].) It is well established that "[a]n out-of-possession owner or lessor is not liable for injuries that occur on the premises unless the owner or lessor has retained control over the premises or is contractually obligated to repair or maintain the premises." (Euvino v. Loconti, 67 AD3d 629, 631 [2d Dept 2009], quoting Conte v. Frelen Assoc., LLC, 51 AD3d 620, 620 [2d Dept 2008]); McElroy v. Bernstein, 72 AD3d 757, 758 [2d Dept 2010].) Additionally, an out-of-possession landlord may be liable if the landlord had notice of the alleged defective condition. (Velazquez v. Tyler Graphics, 214 AD2d 489, 489 [1st Dept 1995].)
Here, the lease states under section 9.1, in pertinent part, that: "Tenant shall, at its own cost [*6]and expense, take good care of the Premises. . . . Tenant shall, at its own cost and expense, clean, maintain and repair the storefront of the Premises and the sidewalks adjacent thereto, but Tenant shall not be obligated to replace sidewalks. . . ." Accordingly, Dynasty is responsible for maintaining and repairing the sidewalks adjacent to the leased premises; however, Dynasty is not obligated for replacing the sidewalk adjacent to the leased premises. In her deposition, plaintiff has testified and has identified the elevated brick as being part of the sidewalk that is adjacent to the building leased by Dynasty.
Dynasty asserts that if the elevated brick needed to be replaced and not repaired, the tenant, which is Dynasty, would not be obligated to do so. The issue of whether the elevated brick would need to be repaired or replaced is material issue of fact. If the elevated brick could have been repaired without the sidewalk being replaced, then Dynasty would have been obligated to repair the elevated brick that allegedly caused plaintiff's accident.
The Court of Appeals of New York has held that "[t]o grant summary judgment[,] it must clearly appear that no material and triable issue of fact is presented." (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957].) However, if "there is any doubt as to the existence of such issues . . . or where the issue is arguable'," then summary judgment should not be granted. (Id.) Here, there is doubt as to whether the elevated brick should have been repaired or replaced, and in turn, there is doubt as to which defendant was responsible. ARS's motion for summary judgment dismissing plaintiff's complaint with regards to ARS as a defendant and all cross-claims against ARS is denied.
III. Whether the Alleged Defect Is Trivial in Nature to Be Actionable
Dynasty argues that the alleged defect possesses none of the characteristics of a trap, a snare, or a nuisance, and that the alleged defect is too trivial to be actionable; and Dynasty asserts that plaintiff's case should be dismissed. Plaintiff asserts that Dynasty does not consider all of the facts, such as width, depth, elevation, irregularity, appearance of the defect, time, place, and circumstance of the injury, in determining whether the defect is trivial or not; instead, Dynasty focuses on the height of the elevated brick. Plaintiff also argues that summary judgment cannot be granted because the circumstances of plaintiff's alleged accident raises questions of fact for the jury to decide.
The Court of Appeals of New York has held that "[t]o grant summary judgment[,] it must clearly appear that no material and triable issue of fact is presented." (Sillman, 3 NY2d at 404.) However, if "there is any doubt as to the existence of such issues . . . or where the issue is arguable'," then summary judgment should not be granted. (Id.) Furthermore, in order for a motion for summary judgment to be defeated, "the opposing party must show facts sufficient to require a trial of any issue of fact'." (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980], quoting CPLR §3213(b) .)
The issue here is whether the alleged defect in the sidewalk constitutes a trivial defect to be actionable. Generally, the determination of "whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is . . . a question of fact for the jury'." (Rogers v. 575 Broadway Associates, L.P., 92 AD3d 857, 858 [2d Dept 2012], quoting Trincere v. County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v. Summa, 193 AD2d 647, 647 [2d Dept 1993].) "[A] property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or toes, or trip." (Dery v. Kmart Corp, 84 AD3d 1303, 1304 [2d Dept [*7]2011].) To determine "whether a defect is trivial[,] as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity[,] and appearance of the defect along with the time, place[,] and circumstance of the injury'." (Id., quoting Trincere, 90 NY2d 976 at 978.)
Here, the alleged defect was a raised brick in a sidewalk. The fact of how high the brick was elevated is a material issue of fact. According to plaintiff's testimony at her deposition, she stated that the brick was raised by 3-4 cm, which is equivalent to 1.1811-1.57480 inches; and according to testimony given by Nohora Medina at her deposition, the brick was lifted up about two and a half inches. Dynasty argues that the defect is not actionable because of the height of the raised brick. Given the discrepancy even between mother and daughter, the height of defect is a question of fact left unresolved.
However, the height of the brick is not the only relevant factor to consider in determining whether a defect is trivial in nature. The Court of Appeals of New York has held that "there is no minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable." (Trincere, 90 NY2d at 977.) In fact, the Court of Appeals of New York has held that "a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable." (Id. at 977—78.) Defendant's argument that a defect is trivial based solely on its height is flawed, in that, the " time, place[,] and circumstance' of the injury" must also be considered. (Id., quoting Caldwell v. Village of Island Park, 304 NY 268, 274 [1952]; See also Hawkins v. Carter Community Housing Development Fund Corp., 40 AD3d 812, 813 [2d Dept 2007] [e.g., adverse weather and lighting may be considered].)
Plaintiff's alleged accident occurred on December 16, 2008, at approximately 6:30 P.M, on a sidewalk adjacent to 46th Street and approximately 80' north of the southeast corner of Greenpoint Avenue, Sunnyside, New York and adjacent to the store leased by Dynasty. According to plaintiff's testimony at her deposition, she stated that the weather was neither snowy nor icy rather, it had started to drizzle, but the ground was still dry. Furthermore, according to plaintiff's testimony, the location where she allegedly slipped and fell was dark. However, Defendant's Exhibits E-1, G-1, and H-1 show a street light present near the location. In addition, it was unclear as to the artificial lighting given off by the surrounding stores.
Additionally, the court cannot summarily conclude whether plaintiff had prior knowledge or constructive notice of the alleged raised brick on the sidewalk, and even if she did, whether such knowledge constitutes comparative negligence. Plaintiff admitted at her deposition to having walked over this sidewalk at least three times a week for forty years and had never tripped prior to said accident. When plaintiff was asked whether she walked on the sidewalk of the alleged accident at nighttime, she initially testified no and then answered that she had walked at night during the summer when it was light out. However, when plaintiff was asked how long she had been attending the same church service at 7:30 P.M., she testified that she had for the last thirty years. Plaintiff has walked over the same sidewalk without any prior accidents every Tuesday night for the last thirty years in order to attend the church service; and, during the winter months, plaintiff would have walked over the same sidewalk in the dark. She also claimed that the entire sidewalk had been deteriorating for the last five years.
Whether the defect was in fact an open and obvious defect and not a trivial one, whether plaintiff's own negligence contributed to the alleged accident, and whether, "by reasonable exercise [*8]of prudence and caution," plaintiff could have avoided the accident, are issues of fact that are unresolved. (Hodges v. City of New York, 195 AD2d 269, 270 [1st Dept 1993].) "[T]he fact that the defect may have been open and obvious . . . may raise an issue of fact as to the plaintiff's comparative negligence" (Fairchild v. J. Crew Group, Inc., 21 AD3d 523, 524 [2d Dept 2005]); and the issue of whether"plaintiff's own conduct in failing to avoid an open and obvious defect [is a] matter[] for jury resolution." (Adsmond v. City of Poughkeepsie, 283 AD2d 598, 599 [2d Dept 2001].)
The Court of Appeals of New York has held that "[t]o grant summary judgment[,] it must clearly appear that no material and triable issue of fact is presented." (Sillman, 3 NY2d at 404.) However, if "there is any doubt as to the existence of such issues . . . or where the issue is arguable'," then summary judgment should not be granted. (Id.) Here, there is a dispute as to material issues of fact, regarding the height of the raised brick, the lighting of the location, and whether plaintiff's prior knowledge contributed to her own negligence and to the alleged accident. These disputes of material issues of fact prohibit summary judgment from being granted here; defendant's cross-motion to dismiss plaintiff's case on the grounds that the alleged defect is too trivial to be actionable is denied.
Conclusion
For the reasons set forth above, ARS's motion for an order pursuant to CPLR §3212 granting summary judgment on its cross-claim against Dynasty upon the grounds of contractual indemnification, together with all attorney's fees and defense and defense costs, is granted. In addition, for the reasons set above, ARS's motion for an order dismissing plaintiff's complaint with regards to ARS as a defendant and any cross-claims against ARS is denied. Lastly, for the reasons set forth above, Dynasty's motion for an order pursuant to CPLR §3212 granting summary judgment dismissing plaintiff's complaint upon the grounds that the alleged defect possesses none of the characteristics of a trap, a snare, or a nuisance and that the alleged defect is too trivial to be actionable is denied in its entirety.
This constitutes the decision and order of this court.
Dated: June 4 , 2012 ___________________________
Bernice D. Siegal, J. S. C.
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