Decided on December 27, 2012
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.
Friedman, J.P., Acosta, Renwick, Richter, Roman, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered October 11, 2011, which to the extent appealed from as limited by the briefs, denied that portion of defendant tenant Bank's motion for summary judgment seeking dismissal of defendant landlord 80 Broad, LLC's cross claims against it and granted defendant landlord's cross motion for summary judgment on its indemnification claim, unanimously modified, on the law, to the extent of denying landlord's cross motion, and otherwise affirmed, without costs.
This is an action for personal injuries suffered by plaintiff, who is not a party to this appeal, when she tripped and fell on a defect in the public sidewalk in front of the defendant tenant bank's branch office, located in premises leased from defendant landlord's building. Pursuant to the lease, defendant landlord is responsible for maintaining the sidewalk and defendant tenant's use of the sidewalk is limited to a three foot "control zone" outside the premises for ingress, egress and deliveries where landlord retains control of the lighting, signage, presentation and design of the premises. In addition, the lease contains an indemnification provision providing that tenant is to indemnify landlord for any accident that occurs "in or about the premises."
Although the phrase "in or about," may, in appropriate circumstances, refer to a general area "expressing the idea of physical proximity" sufficient to include the sidewalk outside a demised premises (see Hogeland v Silbey Lindsay & Curr Co., 42 NY2d 153, 159 ), construing the indemnification clause in this manner would improperly place the clause in direct conflict with other provisions of the lease (National Conversion Corp. v Cedar Bldg. Corp., 23 NY2d 621, 625 ; HSBC Bank USA v National Equity Corp., 279 AD2d 251, 253 [1st Dept 2001]). Tenant is precluded from having any beneficial use of or responsibility for maintenance of the sidewalk and the public sidewalk was not part of the leased premises. Accordingly, the indemnification provision cannot be construed as an agreement to indemnify landlord for accidents on the public sidewalk (see e.g. Lopez v Guei Shun Shiau, 29 Misc 3d 1215(A), affd 88 AD3d 598 [1st Dept 2011]).
The tenant also seeks summary judgment against the landlord on the tenant's common-law indemnification claims to the extent the tenant is liable to plaintiff. Such relief, which the tenant requested in the alternative, is unnecessary since the order appealed from also dismissed the complaint as against the tenant.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 27, 2012
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