| Pearson v Parkside Ltd. Liab. Co. |
| 2007 NY Slip Op 07827 [44 AD3d 833] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Brenda Pearson, Plaintiff, v Parkside Limited LiabilityCompany, Defendant, and Marshall Weinerman Real Estate, Inc., Defendant and Third-PartyPlaintiff-Appellant. Re-Anna, Inc., Third-Party Defendant-Respondent, et al., Third-PartyDefendant. |
—[*1] Hoffman & Roth, LLP, New York, N.Y. (William S. Matlin of counsel), for third-partydefendant-respondent.
In an action to recover damages for personal injuries, the defendant third-party plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Donovan, J.), entered October 10, 2006, as denied its cross motion for summaryjudgment on the third-party complaint insofar as asserted against the third-party defendantRe-Anna, Inc., and granted the motion of the third-party defendant Re-Anna, Inc., for summaryjudgment dismissing the third-party complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof granting themotion of the third-party defendant Re-Anna, Inc., for summary judgment dismissing thethird-party complaint insofar as asserted against it and substituting therefor a provision denyingthat motion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff allegedly slipped and fell on ice on a rear sidewalk adjoining premises leased tothe third-party defendant Re-Anna, Inc. (hereinafter Re-Anna), in a commercial plaza managedby the defendant third-party plaintiff, Marshall Weinerman Real Estate, Inc. (hereinafterMWRE). The plaintiff commenced this action against the defendant Parkside Limited Liability[*2]Company, the owner of the plaza (hereinafter the owner), andMWRE. MWRE commenced a third-party action seeking, inter alia, common-law andcontractual indemnification or contribution from Re-Anna, based on a provision of Re-Anna'slease which purported to obligate Re-Anna to keep the sidewalks adjoining the leased premisesclear of snow, ice, and trash.
Re-Anna moved to dismiss the third-party complaint insofar as asserted against it andMWRE cross-moved for summary judgment on the third-party complaint insofar as assertedagainst Re-Anna. Upon the granting of the separate motions of the defendants for summaryjudgment dismissing the complaint, the Supreme Court denied the motion of Re-Anna and thecross motion of MWRE as academic. However, on appeal, this court reversed the order of theSupreme Court and reinstated the complaint (see Pearson v Parkside Ltd. Liab. Co., 27 AD3d 539 [2006]).Re-Anna then moved for summary judgment dismissing the third-party complaint insofar asasserted against it, and MWRE cross-moved for summary judgment on the third-party complaintinsofar as asserted against Re-Anna. The Supreme Court granted Re-Anna's motion and deniedMWRE's cross motion. MWRE appeals. We modify and deny Re-Anna's motion.
Whether a contract is ambiguous is a question of law (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d272, 278 [2005]). "The test for determining whether contract language is ambiguous is'whether the agreement on its face is reasonably susceptible of more than one interpretation' " (McCabe v Witteveen, 34 AD3d652, 654 [2006], quoting Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). Here,the lease between Re-Anna and the owner is ambiguous as to which party bore the responsibilityto remove snow and ice from the rear sidewalk.
Pursuant to article 7.01 of the lease, the owner, as landlord, is obligated to "operate, manage,equip, light, repair and maintain" the so-called "Common Areas." Pursuant to "Exhibit C" of thelease, entitled "Rules and Regulations," which was incorporated into the lease by article 14.01thereof, rule No. 6 provides that "sidewalks immediately adjoining the premiss [sic]. . . shall be kept clean and free from snow, ice, dirt, and rubbish" by Re-Anna, asthe tenant. Pursuant to the conflict provision of article 14.01 of the lease, if the rules andregulations conflict with or are inconsistent with the lease, then the provisions of the leasegovern. It is unclear from the face of the lease whether or not the owner's obligation pursuant toarticle 7.01 of the lease included the removal of snow and ice from the rear sidewalk where theplaintiff fell. Accordingly, extrinsic evidence is permissible to prove the intent of the parties as tothe removal of snow and ice in the subject area (see South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d272 [2005]; Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).
In addition, the deposition testimony submitted by the parties on the motion and cross motionwas inconclusive and did not resolve the question of the parties' intent. It is undisputed that thethird-party defendant Bermeo Landscaping (hereinafter Bermeo) was hired by the defendants toperform maintenance activities at the plaza which included maintaining the parking lot andcommon areas. Bermeo's principal testified that he routinely cleared snow and ice from thesidewalks in the front of the plaza, and kept materials on site for that purpose. However, he alsotestified that he was not engaged to remove snow or ice from the rear sidewalk and that heobserved the tenants cleaning that area themselves. However, Brady, a principal of Re-Anna,testified that she heard shoveling in the back immediately after she observed Bermeo shovelingin the front. Moreover, a principal of MWRE testified on behalf of the owner that Bermeo"would take care of" the sidewalks "completely surrounding the building." Thus, there exists atriable issue of fact regarding whether the landlord or tenant was responsible under the lease toremove snow and ice from the rear sidewalk precluding [*3]summary judgment for either movant (see Ellers v Horwitz Family Ltd.Partnership, 36 AD3d 849, 851 [2007]; Franks v G & H Real Estate Holding Corp., 16 AD3d 619, 620[2005]; cf. Morgan v Chong KwanJun, 30 AD3d 386, 388 [2006]; Marrone v South Shore Props., 29 AD3d 961, 963 [2006]).
MWRE's remaining contention is without merit (see Matter of One Beacon Ins. Co. v Espinoza, 37 AD3d 607, 608[2007]; Bono v Cucinella, 298 AD2d 483, 484 [2002]). Schmidt, J.P., Goldstein, Skelosand Fisher, JJ., concur.