Submitted - September 28, 2017
D53769
T/htr
Gordon
& Silber, P.C., New York, NY (Andrew B. Kaufman and David
H. Larkin of counsel), for appellant-respondent.
Havkins Rosenfeld Ritzert & Varriale, LLP, New York, NY
(Jarett L. Warner and Matthew D. Kraus of counsel), for
respondent-appellant.
RANDALL T. ENG, P.J. SHERI S. ROMAN ROBERT J. MILLER LINDA
CHRISTOPHER, JJ.
DECISION & ORDER
In an
action to recover damages for personal injuries, etc., (1)
the defendant Mill Basin Convenience Store Corp. appeals from
so much of an order of the Supreme Court, Kings County
(Lewis, J.), dated December 23, 2014, as (a) denied that
branch of its cross motion which was for summary judgment
dismissing the cross claim for contractual indemnification
asserted against it by the defendant A.R. Fuels, Inc., and
(b) denied, with leave to renew, that branch of the motion of
the defendant A.R. Fuels, Inc., which was for summary
judgment on its cross claim for contractual indemnification
asserted against the defendant Mill Basin Convenience Store
Corp. and that branch of the separate motion of the defendant
A.R. Fuels, Inc., which was for certain declaratory relief,
and (2) the defendant A.R. Fuels, Inc., cross-appeals from so
much of the same order as denied, with leave to renew, that
branch of its motion which was for summary judgment on its
cross claim for contractual indemnification asserted against
the defendant Mill Basin Convenience Store Corp. and that
branch of its separate motion which was for certain
declaratory relief.
ORDERED
that the appeal from so much of the order as denied, with
leave to renew, that branch of the motion of the defendant
A.R. Fuels, Inc., which was for summary judgment on its cross
claim for contractual indemnification asserted against the
defendant Mill Basin Convenience Store Corp. and that branch
of the separate motion of the defendant A.R. Fuels, Inc.,
which was for certain declaratory relief is dismissed, as the
defendant Mill Basin Convenience Store Corp. is not aggrieved
by that portion of the order (see CPLR 5511;
Mixon v TBV, Inc., 76 A.D.3d 144); and it is
further, ORDERED that the order is affirmed insofar as
reviewed on the appeal and insofar as cross-appealed from,
without costs or disbursements.
The
plaintiffs commenced this action to recover damages for
personal injuries that the plaintiff Jane O'Donnell
allegedly sustained when she tripped and fell on a sidewalk
abutting real property owned by the defendant A.R. Fuels,
Inc. (hereinafter the owner). The owner asserted a cross
claim for contractual indemnification against the defendant
Mill Basin Convenience Store Corp. (hereinafter the tenant),
which allegedly was the owner's tenant. The tenant
asserted its own cross claim against the owner for common-law
indemnification.
The
owner thereafter moved for, among other things, summary
judgment on its cross claim for contractual indemnification.
The tenant cross-moved for, inter alia, summary judgment
dismissing the cross claim asserted against it. The owner
subsequently made a separate motion for, among other things,
a declaration that the tenant is required to indemnify it
pursuant to a lease agreement.
In the
order appealed from, the Supreme Court, inter alia, denied,
with leave to renew, that branch of the owner's motion
which was for summary judgment on its cross claim for
contractual indemnification and that branch of the
owner's separate motion which was for declaratory relief.
The court also denied that branch of the tenant's cross
motion which was for summary judgment dismissing the
owner's cross claim.
"The
right to contractual indemnification depends upon the
specific language of the contract" (George v
Marshalls of MA, Inc., 61 A.D.3d 925, 930; see
Bellefleur v Newark Beth Israel Med. Ctr., 66 A.D.3d
807, 808). "The promise to indemnify should not be found
unless it can be clearly implied from the language and
purpose of the entire agreement and the surrounding
circumstances" (George v Marshalls of MA, Inc.,
61 A.D.3d at 930).
Here,
the Supreme Court properly denied that branch of the
owner's motion which was for summary judgment on its
cross claim for contractual indemnification and that branch
of the owner's separate motion which was for declaratory
relief. Although the owner's cross claim for contractual
indemnification was premised on the existence of a written
lease agreement between the owner and a former tenant, the
owner's submissions were insufficient to establish that
the lease agreement was authentic and binding on the tenant
(see Fairlane Fin. Corp. v Greater Metro Agency,
Inc., 109 A.D.3d 868, 870; NYCTL 1998-2 Trust v
Santiago, 30 A.D.3d 572, 573; see also Jerome
Prince, Richardson on Evidence, § 9-101 [Farrell 11th ed
2008]). Since the owner failed to sustain its initial burden
of establishing, by proof in admissible form, its prima facie
entitlement to judgment as a matter of law with respect to
its cross claim for contractual indemnification (see CPLR
3212[b]; Zuckerman v City of New York, 49 N.Y.2d
557, 563), the court properly denied that branch of its
motion which was for summary judgment on its cross claim for
contractual indemnification and that branch of its separate
motion which was for declaratory relief, regardless of the
sufficiency of the tenant's opposition papers (see
Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,
853).
The
Supreme Court also properly denied that branch of the
tenant's cross motion which was for summary judgment
dismissing the owner's cross claim. Contrary to the
tenant's contention, it may be required to indemnify the
owner notwithstanding the owner's nondelegable
obligations under Administrative Code of the City of New York
§ 7-210 if the tenant was contractually responsible for
performing sidewalk repairs and failed to comply with that
contractual duty (see Wahl v JCNYC, LLC, 133 A.D.3d
552, 552, citing Collado v Cruz, 81 A.D.3d 542, 542;
cf. Reyderman v Meyer Berfond Trust # 1, 90 A.D.3d
633, 633). The tenant's remaining contentions in support
of its cross motion for summary judgment are either without
merit or not properly before this Court. Since the tenant
failed to establish, prima facie, its entitlement to judgment
as a matter of law, the court properly denied that branch of
its cross motion which was for summary judgment dismissing
the owner's cross claim (see Winegrad v New York
Univ. Med. Ctr., 64 N.Y.2d at 853).
The
tenant's appeal from so much of the order as denied, with
leave to renew, that branch of the owner's motion which
was for summary judgment on its cross claim for contractual
indemnification and that branch of the owner's separate
motion which was for declaratory relief must be dismissed, as
the tenant is not aggrieved by that portion of the order (see
Pepin v Jani,101 A.D.3d 694, 694; Mortgage
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