| Vale v 221 Thompson, LLC |
| 2011 NY Slip Op 01649 [82 AD3d 754] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Angel Luis Vale, Plaintiff, v 221 Thompson, LLC, et al.,Defendants/Third-Party Plaintiffs-Respondents, et al., Defendants. ELRAC, Inc., Doing Businessas Enterprise Rent A Car, Third-Party Defendant-Appellant. |
—[*1] Greater New York Mutual Insurance Company, New York, N.Y. (Thomas D. Hughes,Richard C. Rubinstein, and David D. Hess of counsel), for defendants/third-partyplaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.),dated October 26, 2009, as denied its motion for summary judgment dismissing the third-partycomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On July 12, 2005, the plaintiff, who worked for the third-party defendant, ELRAC, Inc.(hereinafter ELRAC), allegedly was injured when he fell down a stairwell located on thepremises owned and operated by 221 Thompson, LLC, and its corporate affiliates (hereinaftercollectively the Thompson defendants). Certain areas of the premises were leased by theThompson defendants to ELRAC. The plaintiff commenced an action against, among others, theThompson defendants, alleging, among other things, negligent maintenance of the stairwellwhere he fell. The Thompson defendants answered and subsequently commenced a third-partyaction against ELRAC, inter alia, for contribution and indemnification. ELRAC moved forsummary judgment dismissing the third-party complaint and, in the order appealed from, theSupreme Court, among other things, denied its motion. We affirm the order insofar as appealedfrom.
"As a general rule, liability for a dangerous condition on property is predicated uponownership, occupancy, control, or special use of the property" (Millman v Citibank, 216AD2d 278, 278 [1995]). Here, the lease between ELRAC and the Thompson defendantsobligated ELRAC to "keep the building and other improvements on the Premises in good order,condition and repair." However, the subject lease is ambiguous as to whether the demisedpremises included the stairwell where the plaintiff fell. "When the language of a contract isambiguous, its construction presents a question of fact that may not be resolved by the court on amotion for summary judgment" (Shadlich v Rongrant Assoc., LLC, 66 AD3d 759, 760 [2009];see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880-881[1985]; County of Orange v CarrierCorp., 57 AD3d 601, 602 [2008]; DePasquale v Daniel Realty Assoc., 304AD2d 613[*2] [2003]).
ELRAC's remaining contentions are without merit. Accordingly, the Supreme Court properlydenied ELRAC's motion for summary judgment dismissing the third-party complaint, as ELRACfailed to make a prima facie showing of entitlement to judgment as a matter of law (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Angiolillo, J.P., Florio, Belen andAustin, JJ., concur.