RUBIN v. Greyhound Lines, Inc., Defendant-Respondent. (2008)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered February 28, 2007, which denied the cross motion of defendant Port Authority of New York and New Jersey for summary judgment to dismiss defendant Greyhound's cross claims against it and for contractual indemnification against Greyhound, unanimously modified, on the law, summary judgment granted on the indemnification claim conditioned on a finding of liability against the Port Authority, and otherwise affirmed, without costs.

 It is alleged that the injured plaintiff tripped and fell in a hole where a stanchion had been, in an area where passengers would queue up to board Greyhound buses at the Port Authority Bus Terminal in Manhattan.   There is an issue of fact, based on the circumstances presented including Greyhound's use of the area, as to whether it created or contributed to the dangerous condition, and thus had a duty to warn or protect passengers (see Kush v. City of Buffalo, 59 N.Y.2d 26, 29-30, 462 N.Y.S.2d 831, 449 N.E.2d 725 [1983] ), even if such area was not within the boundaries of its leasehold.

 The indemnification clause in Greyhound's lease, which it produced in discovery and relied on before the motion court, and which remained effective after expiration of the lease (see City of New York v. Pennsylvania R.R. Co., 37 N.Y.2d 298, 300-301, 372 N.Y.S.2d 56, 333 N.E.2d 361 [1975] ), is enforceable in light of Greyhound's lease obligation to procure insurance, even if that clause does not limit recovery to the required coverage (see Great N. Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 418-419, 823 N.Y.S.2d 765, 857 N.E.2d 60 [2006] ), and despite the fact that the amount of damages in this case had not been reduced to a sum certain within required policy limits.

There should have been a conditional grant of summary judgment on the indemnification claim (see Lowe v. Dollar Tree Stores, Inc., 40 A.D.3d 264, 835 N.Y.S.2d 161 [2007], lv. dismissed 9 N.Y.3d 891, 842 N.Y.S.2d 769, 874 N.E.2d 734 [2007];  Mangano v. American Stock Exch., 234 A.D.2d 198, 651 N.Y.S.2d 494 [1996] ).   Our holding in Iurato v. City of New York, 18 A.D.3d 247, 793 N.Y.S.2d 915 [2005], lv. dismissed 6 N.Y.3d 806, 812 N.Y.S.2d 445, 845 N.E.2d 1276 [2006], that an attempt to dismiss an indemnification claim prior to a finding of liability was premature, is not to the contrary.