Order, Supreme Court, Bronx County (Alan Saks, J.), entered June 30, 2008, which denied the motion of defendant CP Associates for summary judgment as against defendant Food Bazaar, unanimously modified, on the law, the motion granted to require Food Bazaar to undertake CP's contractual defense in the underlying action, and otherwise affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Sweeny, J.P., Buckley, DeGrasse, Freedman, Abdus-Salaam, JJ.
Summary relief is appropriate on a claim for contractual defense where, as here, the lease agreement is unambiguous and clearly sets forth the parties' intention that a lessee provide a defense to the lessor for injuries sustained (see Brook Shopping Ctr. v Liberty Mut. Ins. Co., 80 AD2d 292 ). While the duty to defend is clear, we note that issues of fact as to liability in the underlying personal injury action render premature a finding that Food Bazaar has a duty to indemnify CP (see e.g. DiFilippo v Parkchester N. Condominium, __ AD3d __, 885 NYS2d 81 ; 79th Realty Co. v X.L.O. Concrete Corp., 247 AD2d 256 ). Absent a finding of liability on CP's part, it would also be premature to declare the contractual indemnification provisions between it and Food Bazaar void and unenforceable under General Obligations Law § 5-322.1 (see Chunn v New York City Hous. Auth., 55 AD3d 437, 438 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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