NEGRON v. Gamestop Corp., et al., Defendants–Appellants. (2020)

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered on or about November 15, 2019, which, to the extent appealed from, denied defendants-appellants' motion for summary judgment dismissing defendant Marco Realty Associates, L.P.'s crossclaim against it, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff sued defendant-landlord Marco Realty Associates, L.P. and defendant-tenant GameStop for damages arising from personal injuries she sustained when she tripped in a hole on the sidewalk adjacent to the premises.  The parties do not dispute that the defect that caused plaintiff's accident was structural and that Marco Realty's crossclaim against GameStop for contractual indemnification fails if GameStop was not contractually obligated to make structural sidewalk repairs (see Administrative Code of the City of New York § 7–210;  Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 169, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019];  Wahl v. JCNYC, LLC, 133 A.D.3d 552, 552–553, 20 N.Y.S.3d 65 [1st Dept. 2015] ).

Article 30 of the lease broadly requires that GameStop make all repairs, and maintain the sidewalk.  However, article 12 of the rider requires that GameStop repair and maintain only the non-structural elements of the premises, and explicitly obligates Marco Realty to repair and maintain structural elements.  Marco Realty does not dispute that article 12 pertains to the sidewalk.  Article 26 of the rider clearly states that where there is a conflict between the terms of the lease and rider, the rider controls.  Accordingly, article 12 of the rider controls and Marco Realty's crossclaim against GameStop fails (see Cucinotta v. City of New York, 68 A.D.3d 682, 684, 892 N.Y.S.2d 352 [1st Dept. 2009];  cf. Collado v. Cruz, 81 A.D.3d 542, 917 N.Y.S.2d 178 [1st Dept. 2011] ).