Fernandez v Tao Downtown

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Fernandez v Tao Downtown 2023 NY Slip Op 33377(U) August 25, 2023 Supreme Court, Queens County Docket Number: Index No. 704752/2019 Judge: Leonard Livote Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 704752/2019 FILED: QUEENS COUNTY CLERK 08/28/2023 03:33 PM NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 08/28/2023 SHORT FORM FORM ORDER ORDER SHORT 'NEW YORK YORK STATE STATE SUPREME SUPREME COURT~ COURT - QUEENS QUEENS COUNTY COUNTY "NEW Present: Honorable Honorable Leonard Leonard Livote Livote lAS Part Part 33 IAS Present: Supreme Court Court Justice Justice Supreme -------------------------------------------~----x ----------.---------~ ·-------------------- '----x LUIS RAMOS RAMOS FERNANDEZ, FERNANDEZ, Plaintiff, Plaintiff, Index No.: 704752/2019 704752/2019 Index ..against--against- Motion Date: 4/4/2023 4/4/2023 Motion Seq. #7 Seq.#7 TAO DOWNTOWN, DOWNTOWN, ASIA ASIA ONE ONE SIX, LLC LLC MARKET CORNER CORNER REALTY REALTY ASSOCIATES, ASSOCIATES, MARKET SAHARA DREAMS, DREAMS, LLC, LLC, BD LLC SAHARA STANHOPE LLC, LLC, STERLING STERLING GLOBAL GLOBAL STANHOPE DEVELOPMENT and DREAM DREAM HOTEL HOTEL DEVELOPMENT GROUP, LLC LLC GROUP, Defendants. Defendants. -FILED ~ 8/28/2023 COUNTY CLERK QUEENS COUNTY -----------------------------------------------x -----------------------------------------------x 'MARKET CORNER CORNER REALTY REALTY ASSOCIATES, ASSOCIATES, LLC LLC ·MARKET Third Third Party Party Plaintiff Plaintiff FIRSTTHIRD PARTY ·'FIRSTTHIRD PARTY -against-againstSAHARA DREAMS, DREAMS, LLC LLC . SAHARA Third Party Party Defendant Defendant Third ---------------------------------------------------x ---------------------------------------------------x SAHARA DREAMS, DREAMS, LLC LLC SAHARA SECOND THIRD THIRD PARTY PARTY SECOND Second Third Third Party Party Plaintiff Plaintiff Second -against-againstALLSTAR SECURITY SECURITY CONSULTING, CONSULTING, INC. INC . ALLSTAR ./ Second Third Third Party Party Defendant Defendant Second ---------------------------- -- - --•--------- ----------------------x , ..-----------------------------------x 1 ..; [* 1] 1 of 4 INDEX NO. 704752/2019 FILED: QUEENS COUNTY CLERK 08/28/2023 03:33 PM NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 08/28/2023 following papers papers numbered numbered below below read read on this motion motion by by Defendant, Defendant, First First The following Third Party Party Defendant Defendant and and Second Second Third Third Party Party Plaintiff, Plaintiff, Sahara Sahara Dreams Dreams LLC LLC and Third Dream Hotel Hotel Group Group LLC LLC for an Order: Order: pursuant CPLR §3212 g3212 awarding awarding Sahara Sahara Dream pursuant to CPLR Dreams, Dreams, LLC LLC and and Dream Dream Hotel Hotel Group, Group, LLC LLC (the "Sahara "Sahara Defendants") Defendants") summary summary judgment their cross-claim cross-claim for contractual contractual indemnity indemnity against against Co-Defendant Co-Defendant judgment on their Market Comer Comer Realty Realty Associates, Associates, LLC LLC and an order order that that Defendant Defendant Market Market Market Comer Realty Realty Associates Associates LLC LLC reimburse reimburse the Sahara Sahara Defendants Defendants for all costs, Comer including attorney's attorney's fees associated associated with with defending defending the lawsuit. lawsuit. including PAPERS PAPERS NUMBERED NUMBERED Notice of Motion, Motion, Affirmation, Affirmation, Affidavits Affidavits Notice of Exhibits ........................................................................... . and Exhibits 163-179 163-179 Cross Motion, Motion, Affirmation, Affirmation, Affidavits Affidavits Cross Exhibits ............................................................................ . and Exhibits Answering Affirmations, Affirmations, Affidavits Affidavits Answering And Exhibits Exhibits ........................................................................... . And 184, 186-191 Reply Affirmations, Affirmations, Affidavits Affidavits Reply And Exhibits Exhibits ............................................................................. . 197 And Other ........................................................................... . Other Upon the foregoing foregoing papers, papers, the motion motion is determined determined as follows: follows: Upon within summary summary judgment motion concerns concerns a cross cross claim claim of of contractual contractual The within judgment motion indemnity by the the Sahara Sahara Defendants Defendants against against co-Defendant co-Defendant Market Market Comer Comer Realty Realty indemnity Associates. Associates. FACTS: FACTS: Plaintiff brings brings the within within action action for personal personal injuries injuries sustained sustained in a slip Plaintiff accident. Defendant Defendant Market Market Comer Comer Realty Realty Associates Associates LLC LLC is the owner owner and fall accident. of363 West 16th Street, Street, New York. Plaintiff Plaintiff was making making a delivery delivery to Tao of 363 West New York. Restaurant (Tao) (Tao) on May May 22, 22,2018. Restaurant is a tenant tenant of of Defendant Defendant 2018. Tao Restaurant Restaurant Market Comer Comer Realty Realty Associates, Associates, Inc. Plaintiff Plaintiff alleges, alleges, inter inter alia, that that he was Market caused to slip and and fall on garbage, garbage, oil or grease grease on the delivery delivery rampway rampway located located caused th th West 16 Street, Street, New York, NY. It is further further alleged alleged that that Tao would would place place at 363 West New York, garbage bags bags on the driveway/ramp driveway/ramp area and the bags bags would would sometimes sometimes break. break. its garbage The subject rampway was owned maintained by the Dream Downtown subject rampway owned and maintained Dream Downtown Hotel a/k/a Sahara Sahara Dreams Group, LLC, Hotel Dreams LLC LLC and Dream Dream Hotel Hotel Group, LLC, who had had a contract with Allstar Security Security and Consulting Consulting Inc. Allstar security contract with Allstar Allstar has posted posted security 2 [* 2] 2 of 4 FILED: QUEENS COUNTY CLERK 08/28/2023 03:33 PM NYSCEF DOC. NO. 203 INDEX NO. 704752/2019 RECEIVED NYSCEF: 08/28/2023 guards guards to monitor monitor the loading loading dock dock ramp spills and report report same to ramp for debris or spills Dream Dream Downtown Downtown Hotel. Hotel. Additionally, Additionally, Dream Dream Downton Downton Hotel Hotel had a contract contract with Sterling Sterling Global Global Development Development LLC to provide provide cleaning cleaning services services including including power power washing washing the loading loading dock dock ramp ramp on a daily daily basis. There There is an easement easement in effect effect in May May 2018 (including (including the date of of the Plaintiff's Plaintiff's accident) accident) which which is on file with with the NYC NYC Department Department of of Finance Finance Office Office of of the City City Register Register concerning concerning the driveway/loading driveway/loading dock dock that that exists exists between between the Sahara Sahara Defendants Defendants property property and the property property owned owned by Defendant Defendant Market Market Comer. Comer. Despite Despite the fact that that Sahara Sahara Dreams Dreams technically technically owns owns the driveway/loading driveway/loading dock dock in question, question, Defendant Defendant Market Market Comer Comer has an easement easement permitting permitting them them to use the property property for their their own own benefit benefit and the benefit of its lessees. lessees. benefit of When When this accident accident occurred occurred on May May 22, 2018, 2018, Market Market Comer Comer Realty Realty Associates, Associates, LLC LLC owned owned the property property at 88-102 88-102 Ninth Ninth Avenue Avenue (next (next to the property property at 346 West West 17th Street). Street). This This property property was leased leased to Maritime Maritime Hotel Hotel (corporate (corporate name Hudson Hudson River River Inn, LLC) LLC) and Tao Restaurant Restaurant ((owned by BD Stanhope, Stanhope, owned by LLC). LLC). Defendant Defendant Market Market Comer Comer qualifies qualifies as the "Grantee" "Grantee" in the subject subject easement easement agreement. agreement. The property property next next to Market Market Comer Comer Realty Realty Associates, Associates, 346 West West 17th Street, was owned owned by 346 West West 17th Street, LLC and leased leased to Sahara Sahara Dreams, Dreams, LLC for a term 05 years. term of of I105 years. The Sahara Sahara Defendants Defendants qualify qualify as the "Grantor" "Grantor" in the easement easement agreement. agreement. The Sahara Sahara defendants defendants now now move move for summary summary judgment their cross judgment on their claim claim against against the Market Market Comer Comer defendants defendants for contractual contractual indemnification, indemnification, including including attorneys' attorneys' fees, based based on the indemnity indemnity and insurance insurance procurement procurement clause clause in the easement easement agreement. agreement. "The "The right right to contractual contractual indemnification indemnification depends depends upon upon the specific specific language language of of the contract. contract. The promise promise to indemnify indemnify should should not be found found unless unless it can be clearly clearly implied implied from from the language language and purpose purpose of of the entire entire agreement agreement and the surrounding surrounding circumstances" circumstances" (George (George v Marshalls of MA, Inc., 61 AD3d AD3d 925, Marsha/ls of 930 [2d Dept Dept 2009] 2009] [citation [citation omitted]). omitted]). "Generally, "Generally, 'contracts 'contracts will not be construed construed to indemnify indemnify a person person against against his [[or her] own negligence negligence unless unless such or own intention intention is expressed expressed in unequivocal unequivocal terms"' terms'" ((Cortes of Brookhaven, Cortes v Town of Brookhaven, 78 AD3d AD3d 642,644 642,644 [2d Dept Dept 2010], 2010], quoting quoting Kurek Port Chester Chester Hous. Auth., Auth., 18 Kurekvv Port NY2d 450,456 NY2d 450,456 [1966]). [1966]). Contractual Contractual provisions provisions purporting purporting to indemnify indemnify a party party against against its own own negligence negligence are "carefully "carefully scrutinized" scrutinized" by the courts. courts. (Levine (Levine v Shell Oil Co., 28 NY2d NY2d 205, 205,211 [1971]). Shell 211 [1971]). In the instant instant case, the language language of of the easement easement agreement agreement clearly clearly indicates indicates that the parties parties intended intended that grantee, grantee, the Market Market Comer Comer defendants, defendants, be 3 [* 3] 3 of 4 INDEX NO. 704752/2019 FILED: QUEENS COUNTY CLERK 08/28/2023 03:33 PM NYSCEF DOC. NO. 203 RECEIVED NYSCEF: 08/28/2023 responsible responsible for all claims claims arising arising out out of of the Market Market Comer Corner defendants' defendants' or their their authorized user's use use of of the the easement easement area area regardless regardless of of fault, and and accordingly, accordingly, the authorized user's Market Comer defendants defendants are obligated obligated pursuant pursuant to the contract contract to indemnify indemnify the Market Comer Sahara Sahara defendants defendants (see (see Yeung Yeung vv MId. Mkt. Corner Corner Realty Realty Assoc., Assoc., LLC, LLC, 2020 2020 WL WL 8366327 [N.Y. Sup Ct, Queens County 2020]). Because the plaintiff fell in the 8366327 Sup Ct, Queens County 2020]). Because the plaintiff easement to contractual'indemnification. contractual' indemnification. Accordingly, Accordingly, easement area, area, movants movants are entitled entitled to the Sahara defendants' motion for summary judgment on their cross-claim the Sahara defendants' motion for summary judgment on their cross-claim for for contractual indemnity against Co-Defendant Market Comer Realty Associates, contractual indemnity against Co-Defendant Market Comer Realty Associates, LLC LLC is is granted granted and, and, itit is, is, \\ ORDERED, ORDERED, that that Defendant Defendant Market Market Comer Corner Realty Realty Associates Associates LLC LLC shall shall reimburse the Sahara Defendants for all costs, including attorney's fees associated reimburse the Sahara Defendants for all costs, including attorney's fees associated with with defending defending the the lawsuit. lawsuit. This of the the Court. Court. This constitutes constitutes the the Order Order of Dated: Dated: August August 25, 25, 2023 2023 FILED ~ 8/28/2023 COUNTY CLERK QUEENS COUNTY --- )) 44 [* 4] 4 of 4

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