Diana Pacheco, Plaintiff–Respondent, v. <<

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Supreme Court, Appellate Division, First Department, New York.

Diana Pacheco, Plaintiff–Respondent, v.

Kushner Companies, et al., Defendants.  Kushner Companies, et al., Third–Party Plaintiffs–Respondents, v. Toys “R” Us–Delaware, Inc., Third–Party Defendant–Appellant.

5773– 5774

Decided: October 20, 2011

Gonzalez, P.J., Mazzarelli, Sweeny, Abdus–Salaam, Román, JJ. McAndrew, Conboy & Prisco, Melville (Yasmin D. Soto of counsel), for appellant.

Siler & Ingber, LLP, Mineola (Subrata Sengupta of counsel), for Diana Pacheco, respondent.

Smith Valliere PLLC, New York (Gregory Zimmer of counsel), for Kushner Companies, Kushner Seiden Madison Avenue Properties, L.P., Kushner Seiden Madison/64th Properties, L.P., Madison/64th Properties, Inc., Bruckner Plaza Shopping Center, LLC, Bruckner Plaza Associates and Bruckner Plaza Associates, L.P., respondents.


Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered December 20, 2010, which, upon reargument, denied third-party defendant's motion for summary judgment dismissing the third-party complaint, unanimously modified, on the law, to grant the motion to the extent of dismissing the contractual indemnification claims of all third-party plaintiffs, except Bruckner Plaza Associates, and otherwise affirmed, without costs.   Appeal from order, same court and Justice, entered May 20, 2010, unanimously dismissed, without costs, as academic.

The court correctly denied the motion of tenant Toys “R” Us for summary judgment insofar as it sought dismissal of the third-party complaint in its entirety, since tenant failed to eliminate all triable issues of fact with respect to whether it was responsible for maintaining the sidewalk where plaintiff's accident occurred.   Toys “R” Us established which lease controlled, but the lease provision regarding its responsibility for repairs and maintenance to the subject sidewalk is ambiguous since it is susceptible to more than one interpretation as to what constituted the demised premises, and as to which sidewalks Toys “R” Us was responsible for maintaining (see Feldman v. National Westminster Bank, 303 A.D.2d 271 [2003], lv denied 100 N.Y.2d 505 [2003] ).   Further, the parties' reliance upon parol evidence did not clarify the ambiguous terms of the lease, but presented a triable issue of fact (see Omath Holding Co. v. City of New York, 149 A.D.2d 179, 186 [1989] ).

However, the court erred in failing to grant the motion insofar as it sought dismissal of the contractual indemnification claims of entities not covered by the indemnification provision of the lease (see Thomas Indus. v. Sackren, 37 A.D.2d 601 [1971] ).   The record establishes that only Bruckner Plaza Associates was a signatory to the lease at issue.

We have considered the remaining contentions of Toys “R” Us and find them unavailing.