Zapototsky v. Ascape Landscape & Constr. Corp.

221 A.D.3d 1055

201 N.Y.S.3d 151

Orest ZAPOTOTSKY, plaintiff,

v.ASCAPE LANDSCAPE & CONSTRUCTION CORP., respondent,Simon Property Group, L.P., et al., appellants.

2020–04204

Index No. 31455/18

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

Argued—June 13, 2023

November 29, 2023

Stagg Wabnik Law Group LLP, Garden City, NY (Thomas E. Stagg, Michael C. Dombrowski, and Brian A. Lacoff of counsel), for appellants.

Law Offices of Marc D. Orloff, P.C., Goshen, NY (Edward P. Souto and Tony Semidey of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Simon Property Group, L.P., and Premium Outlet Partners, L.P., appeal from an order of the Supreme Court, Rockland County (Paul I. Marx, J.), dated May 11, 2020. The order, insofar as appealed from, denied those defendants’ motion for conditional summary judgment on their cross-claims for contractual indemnification, breach of a contractual duty to defend, and an award of attorney's fees against the defendant Ascape Landscape & Construction Corp., and granted those branches of the cross-motion of the defendant Ascape Landscape & Construction Corp. which were for summary judgment dismissing those cross-claims.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the cross-motion of the defendant Ascape Landscape & Construction Corp. which were for summary judgment dismissing the cross-claims of the defendants Simon Property Group, L.P., and Premium Outlet Partners, L.P., for contractual indemnification, breach of a contractual duty to defend, and an award of attorney's fees, and substituting therefor provisions denying those branches of the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he slipped and fell on a patch of ice on a sidewalk, located between a parking lot and a store entrance at an outlet mall. The defendants Simon Property Group, L.P., and Premium Outlet Partners, L.P. (hereinafter together the Simon defendants), together interposed an answer, in which they asserted cross-claims against the defendant Ascape Landscape & Construction Corp. (hereinafter Ascape), the company that contracted with the Simon defendants to perform snow and ice removal at the subject property.

Thereafter, the Simon defendants moved for conditional summary judgment on their cross-claims against Ascape for contractual indemnification, breach of a contractual duty to defend, and an award of attorney's fees. Ascape cross-moved, inter alia, for summary judgment dismissing those cross-claims. In an order dated May 11, 2020, the Supreme Court, inter alia, denied the Simon defendants’ motion, and granted those branches of Ascape's cross-motion. The Simon defendants appeal.

The Supreme Court properly denied the Simon defendants’ motion. "The right to contractual indemnification depends upon the specific language of the contract" ( Poalacin v. Mall Props., Inc., 155 A.D.3d 900, 909, 63 N.Y.S.3d 679 ; see Ramales v. Pecker Iron Workers of Westchester, Inc., 114 A.D.3d 920, 921, 980 N.Y.S.2d 817 ). "The promise to indemnify should not be found unless it can be clearly implied from the language and the purpose of the entire agreement and the surrounding circumstances" ( Meadowbrook Pointe Dev. Corp. v. F & G Concrete & Brick Indus., Inc., 214 A.D.3d 965, 970, 187 N.Y.S.3d 242 § internal quotation marks omitted; see Breland–Marrow v. RXR Realty, LLC, 208 A.D.3d 627, 629, 173 N.Y.S.3d 601 ; Garcia v. Emerick Gross Real Estate, L.P., 196 A.D.3d 676, 679, 152 N.Y.S.3d 462 ).

Here, the subject contract provided, inter alia, that Ascape was obligated to defend and to indemnify the Simon defendants for third-party claims of bodily injury "in any way relating to or resulting, in whole or in part, from [Ascape's] performance or alleged failure to perform the Services or any other breach of this Agreement." Ascape's responsibilities pursuant to the contract included, among other things, treating concrete sidewalks with calcium chloride, keeping mall entrances "clear," salting or sanding individual store entrances, and providing continuous 24–hour snow removal after a snow event until "all parking lots, roadways, access roads, courtyards and receiving areas" were "clear and slip free."

The Simon defendants failed to meet their prima facie burden of demonstrating their entitlement to conditional summary judgment on their cross-claim for contractual...