— Wilson Heredia, Plaintiff, v. 1454 (2015)

Supreme Court, Appellate Division, First Department.

— Wilson Heredia, Plaintiff, v. 1454 St. Nicholas Avenue Associates, et al., Defendants.
St. Nicholas Avenue Associates, et al Third–Party Plaintiffs–Appellants, v. Apicella Fish Co. Of N.Y. Inc., Third–Party Defendant–Respondent.

1431 7 1431 8 1454

Decided: February 24, 2015

Friedman, J.P., Sweeny, Saxe, Feinman, Clark, JJ.

Anita Nissan Yehuda, P.C., Roslyn Heights (Anita Nissan Yehuda of counsel), for appellants. White & McSpedon, P.C., New York (Joseph W. Sands of counsel), for respondent.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 15, 2013, which, insofar as appealed from as limited by the briefs, granted third-party defendant tenant's motion for summary judgment dismissing the third-party cause of action for contractual indemnification for amounts that defendant third-party plaintiff 1454 St. Nicholas Avenue Associates (owner) recovers from insurance, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered April 14, 2014, which, insofar as appealable, denied defendants/third-party plaintiffs' motion for renewal of the July 15, 2013 order, unanimously dismissed, without costs, as academic.

Plaintiff, an employee of tenant, was allegedly injured on premises leased from the owner. Paragraph 46 of the rider to the lease unambiguously requires, inter alia, that “tenant shall indemnify owner for, and hold owner harmless and free from damages sustained by person or property.” Even if we were to agree with tenant's contention that paragraph 46 to the rider was ambiguous, the remedy would not be to render it a nullity as tenant urges, but to admit extrinsic evidence to determine its meaning. In either event, tenant's motion for summary judgment should have been denied.

CLERK

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