Schwab & Gasparini, PLLC, White Plains, NY (Louis U.
Gasparini of counsel), for third-party defendant-appellant.
Conway, Loccisano & Dillon, White Plains, NY (Marc
Stiefeld of counsel), for defendants third-party
C. DILLON, J.P, JEFFREY A. COHEN, JOSEPH J. MALTESE, COLLEEN
D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
third-party defendant appeals from an order of the Supreme
Court, Westchester County (Giacomo, J.), dated May 12, 2015,
which granted the motion of the defendants third-party
plaintiffs for summary judgment on the third-party complaint
and for an order directing the third-party defendant to
provide them with insurance coverage, and denied that branch
of its cross motion which was for summary judgment dismissing
the third-party complaint.
that the order is modified, on the law, (1) by deleting the
provision thereof granting the motion of the defendants
third-party plaintiffs for summary judgment on the
third-party complaint and for an order directing the
third-party defendant to provide them with insurance
coverage, and substituting therefor a provision denying the
motion, and (2) by deleting the provision thereof denying
that branch of the third-party defendant's cross motion
which was for summary judgment dismissing the third-party
complaint insofar as asserted by the defendants third-party
plaintiffs Miller Auto Parts, Inc., and Mt. Kisco Truck &
Auto Parts, and substituting therefor a provision granting
that branch of the cross motion; as so modified, the order is
affirmed, without costs or disbursements.
plaintiff Lisa Palladino Petersen (hereinafter the injured
plaintiff) allegedly was injured when she slipped and fell on
ice in the parking lot of a property in Scarsdale. The
injured plaintiff is a member of the third-party defendant,
Scorpis, LLC (hereinafter Scorpis), which leased a portion of
the property from the defendant third-party plaintiff MSP
Realty. Thereafter, the injured plaintiff, and her husband
suing derivatively, commenced this personal injury action.
The defendants MSP Realty, Miller Auto Parts, Inc., and Mt.
Kisco Truck & Auto Parts (hereinafter collectively the
third-party plaintiffs) then commenced a third-party action
against Scorpis seeking contractual indemnification. The
third-party plaintiffs alleged that the commercial lease
between Scorpis and MSP Realty obligated Scorpis, as tenant,
to maintain the parking lot, and that its breach of that
obligation entitled them to indemnification in the personal
injury action. In its answer to the third-party complaint,
Scorpis denied that it was obligated to maintain the parking
lot, and interposed a counterclaim against the third-party
plaintiffs for common-law indemnification.
discovery, the third-party plaintiffs moved for summary
judgment on the third-party complaint and for an order
directing Scorpis to provide them with insurance coverage,
relying on the lease and the deposition testimony of the
injured plaintiff, of one of the owners of MSP Realty, and of
the contractor hired to clear snow from the parking lot
(hereinafter the snow removal contractor). Scorpis opposed
the motion, and cross-moved for summary judgment dismissing
the third-party complaint and for a default judgment on its
counterclaim for common-law indemnification. The Supreme
Court granted the third-party plaintiffs' motion, and
denied that branch of the cross motion of Scorpis which was
for summary judgment dismissing the third-party complaint.
party's right to contractual indemnification depends upon
the specific language of the relevant contract"
(Campisi v Gambar Food Corp., 130 A.D.3d 854, 855;
see Alayev v Juster Assoc., LLC, 122 A.D.3d 886,
887; Desena v North Shore Hebrew Academy, 119 A.D.3d
631, 636). "When a party is under no legal duty to
indemnify, a contract... must be strictly construed to avoid
reading into it a duty which the parties did not intend to be
assumed" (Hooper Assoc. v AGS Computers, 74
N.Y.2d 487, 491; see Fatirian v Monti's Holding,
Inc., 65 A.D.3d 1280, 1282). "The promise should
not be found unless it can be clearly implied from the
language and purpose of the entire agreement and the
surrounding facts and circumstances" (Hooper Assoc.
v AGS Computers, 74 N.Y.2d at 491-492; see Capretto
v City of Buffalo, 124 A.D.3d 1304, 1310; Fatirian v
Monti's Holding, Inc., 65 A.D.3d at 1282).
Supreme Court should have denied that branch of the
third-party plaintiffs' motion which was for summary
judgment on the third-party complaint seeking contractual
indemnification insofar as asserted by Miller Auto Parts,
Inc., and Mt. Kisco Truck & Auto Parts. The third-party
plaintiffs' submissions established that the lease
containing the indemnification provision is between MSP
Realty and Scorpis. Neither Miller Auto Parts, Inc., nor Mt.
Kisco Truck & Auto Parts are parties to the lease, and
the third-party plaintiffs offered no evidence that Scorpis
had otherwise similarly contracted to indemnify either of
those two entities, or what, if any, relationship they had to
the property. Accordingly, Miller Auto Parts, Inc., and Mt.
Kisco Truck & Auto Parts failed to establish, prima
facie, that they were entitled to summary judgment on the
third-party complaint seeking contractual indemnification.
That branch of the third-party plaintiffs' motion
therefore should have been denied without regard to the
sufficiency of the opposition papers (see Winegrad v New
York Univ. Med. Ctr., 64 N.Y.2d 851, 853). For the same
reason, the court should have granted that branch of the
cross motion of Scorpis which was for summary judgment
dismissing the third-party complaint insofar as asserted by
Miller Auto Parts, Inc., and Mt. Kisco Truck & Auto Parts
(see generally Alvarez v Prospect Hosp., 68 N.Y.2d
320, 324; Campisi v Gambar Food Corp., 130 A.D.3d at
Supreme Court also erred in granting that branch of the
third-party plaintiffs' motion which was for summary
judgment directing Scorpis to provide them with insurance
coverage, because the third-party plaintiffs did not bring an
action for that declaratory relief (see CPLR
3017[b]), and otherwise made no demand for that relief,
express or implied, in the third-party complaint (see
e.g. Matter of Seplow v Century Operating Co., 56 A.D.2d
to the issue of whether MSP Realty is entitled to contractual
indemnification, the lease requires Scorpis to indemnify MSP
Realty for any claims "arising out of (a) any breach or
default on the part of [Scorpis] in the observance or
performance of any of its agreements or obligations under
this lease, and (b) any injury or damage to any person or
property occurring in or on the Premises caused by the acts
or omissions of [Scorpis], its agents, [or] employees."
respect to snow removal in the parking lot, the lease
provides that Scorpis "shall be responsible for the
maintenance of the blacktopped parking area including but not
limited to snowplowing." The lease also provides that
Scorpis was obligated to pay MSP Realty, as additional rent,
"fifty percent (50%) of all expenses, costs and amounts
of every kind that [MSP Realty] pays or incurs during any
Expense year because of or in connection with the maintenance
or repair of the common areas of the Building and/or
Land." The lease states that those expenses include
"[t]he cost of parking area maintenance and repair,
including repainting, re-striping, cleaning, and
the lease provision that Scorpis was responsible for
"snowplowing" the "blacktopped parking area,
" the deposition testimony of the injured plaintiff, of
one of the owners of MSP Realty, and of the snow removal
contractor demonstrated that the snow removal contractor was
hired by MSP Realty, not Scorpis. The injured plaintiff, a
member of Scorpis, testified at her deposition that the only
responsibility Scorpis had for snow removal from the parking
lot was "paying for the snow plow, " and that
Scorpis did not call or hire a person to come remove the
snow. Further, the injured plaintiff's deposition
testimony and an invoice established that MSP Realty billed
Scorpis for 50% of the cost of snow removal.
contrary to the Supreme Court's determination, the
submissions in support of the third-party plaintiffs'
motion failed to eliminate triable issues of fact as to
whether Scorpis or MSP Realty was responsible for snow
removal in the parking lot, and thus whether MSP Realty was
entitled to contractual indemnification pursuant to the terms
of the lease. Since the third-party plaintiffs failed to
establish their prima facie entitlement to judgment as a
matter of law, the court should have denied that branch of
the third-party plaintiffs' motion which was for summary
judgment in favor of MSP ...