PUCHALSKY v. Shaw Shahery, et al., Defendants-Appellants. (1997)

Order, Supreme Court, New York County (Edward Lehner, J.), entered on or about April 9, 1996, which, in an action to recover for injuries sustained in a sidewalk trip and fall, denied the motion of defendants landlord and managing agent for summary judgment on their cross claim against defendant-tenant Historic Travel Agency, unanimously modified, on the law, to grant summary judgment to Historic dismissing defendants' cross-claim against it for contractual indemnification, and otherwise affirmed with costs to defendant-respondent.

Plaintiff allegedly tripped and fell over a defective and raised slab of the sidewalk located in front of the store leased by Historic in a shopping center owned and managed by the moving defendants.   Indemnification is sought pursuant to paragraph second of Historic's lease, which provides that the tenant will indemnify the landlord “for any matter or thing growing out of the occupation of the demised premises or of the streets, sidewalks or vaults adjacent thereto”.   Although Historic is required to “keep the sidewalk and curb in front thereof clean at all times and free from snow and ice”, it was the moving defendants' obligation as landlord and managing agent to maintain the sidewalk in good repair.   The indemnification clause would apply only to a claim arising from Historic's occupation of the sidewalk.   Inasmuch as there is no evidence that Historic occupied or controlled any part of the sidewalk, there is no basis for any indemnification by Historic.   Therefore, in searching the record on this motion for summary judgment, we conclude that Historic, albeit a non-appealing party, is entitled to summary judgment dismissing the cross claims against it.

MEMORANDUM DECISION.