SHADLICH v. Rite Aid of New York, Inc., appellant. (2009)

In an action to recover damages for personal injuries, etc., the defendant Rite Aid of New York, Inc., appeals from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated August 18, 2008, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

 On its motion for summary judgment, the defendant Rite Aid of New York, Inc. (hereinafter Rite Aid), argued that it had no duty to maintain the area where the plaintiff's decedent allegedly tripped and fell, relying upon a provision in its lease with the defendant Rongrant Associates, LLC, obligating it to maintain “the sidewalk” in front of the leased premises.   However, that provision is ambiguous as to whether Rite Aid had a duty to maintain the area where the decedent tripped and fell (see County of Orange v. Carrier Corp., 57 A.D.3d 601, 602, 869 N.Y.S.2d 211;  Lerer v. City of New York, 301 A.D.2d 577, 578, 756 N.Y.S.2d 217).   When the language of a contract is ambiguous, its construction presents a question of fact that may not be resolved by the court on a motion for summary judgment (see Amusement Bus. Underwriters v. American Intl. Group, 66 N.Y.2d 878, 880, 498 N.Y.S.2d 760, 489 N.E.2d 729;  County of Orange v. Carrier Corp., 57 A.D.3d at 602, 869 N.Y.S.2d 211;  DePasquale v. Daniel Realty Assoc., 304 A.D.2d 613, 757 N.Y.S.2d 477).   Contrary to Rite Aid's contention, the rule that ambiguous language in a contract will be construed against the drafter is not applicable, because the subject lease resulted from negotiations between commercially sophisticated entities (see Citibank, N.A. v. 666 Fifth Ave. Ltd. Partnership, 2 A.D.3d 331, 769 N.Y.S.2d 268;  Coliseum Towers Assoc. v. County of Nassau, 2 A.D.3d 562, 565, 769 N.Y.S.2d 293).   Accordingly, Rite Aid failed to make a prima facie showing of entitlement to judgment as a matter of law, and thus, the Supreme Court properly denied Rite Aid's motion for summary judgment without considering the sufficiency of the opposition papers (see Miller v. Bah, 58 A.D.3d 815, 816, 872 N.Y.S.2d 173).