| Pritchard v Suburban Carting Corp. |
| 2011 NY Slip Op 09107 [90 AD3d 729] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Kathleen Pritchard, Plaintiff, v Suburban Carting Corp. etal., Defendants, McDonald's Corporation et al., Respondents, and Centro GA Cortlandt, LLC,Appellant. |
—[*1] Faust Goetz Schenker & Blee LLP, New York, N.Y. (Peter Kreymer of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant Centro GA Cortlandt,LLC, appeals from so much of an order of the Supreme Court, Westchester County (Liebowitz,J.), entered September 28, 2010, as denied that branch of its motion which was for summaryjudgment on its cross claim against the defendant McDonald's Corporation for contractualindemnification.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Centro GA Cortlandt, LLC, which was for summaryjudgment on its cross claim against the defendant McDonald's Corporation for contractualindemnification is granted.
The plaintiff allegedly was injured when she was struck by a garbage truck in the parking lotof a McDonald's restaurant after leaving the restaurant. At her deposition, she testified that shestood on the curb, in a landscaped area of the parking lot, and looked to her right and left beforeattempting to cross the lot to reach her car. Two-way traffic was permitted in this area of theparking lot. There were no crosswalks or other markings at this location. When the plaintifflooked to her left, she saw a garbage truck about two car lengths away. She testified at herdeposition that the truck was not moving at the time. She stepped off the curb and took three orfour steps before she was struck by the garbage truck. The garbage truck driver, the defendantPaul G. Troy, testified at his deposition that he stopped the truck when he heard a scream. He didnot know where the plaintiff came from, and his view was obstructed by a rail on the outside ofthe truck.
The plaintiff subsequently commenced this action against, among others, the landlord CentroGA Cortlandt, LLC (hereinafter Centro), the tenant McDonald's Corporation (hereinafterMcDonald's), and the restaurant franchisee Seventh Wong Corp. (hereinafter Wong), alleging,inter alia, that they were negligent in the ownership, maintenance, repair, inspection, design, and[*2]construction of the parking lot. Centro asserted a cross claimagainst McDonald's for contractual indemnification.
Centro moved, among other things, for summary judgment on its cross claim againstMcDonald's for contractual indemnification. In the order appealed from, the Supreme Court, interalia, denied that branch of Centro's motion, finding that there were triable issues of fact as towhether Centro was negligent in the happening of the accident which precluded an award ofsummary judgment to Centro on its cross claim against McDonald's for contractualindemnification. We reverse the order insofar as appealed from by Centro.
As Centro correctly contends, the Supreme Court erred in denying that branch of its motionwhich was for summary judgment on its cross claim against McDonald's for contractualindemnification. The indemnification provision in the lease between McDonald's and Centroprovides that McDonald's will indemnify Centro for "any accident, injury or damage whatsoevercaused to any person or property arising, directly or indirectly, out of the business conducted inthe Premises or occurring in, on or about the Premises or any part thereof," except when suchwas a result of Centro's own negligence. The record establishes that the accident took place "in,on or about the Premises" (see generally Hogeland v Sibley, Lindsay & Curr Co., 42NY2d 153 [1977]). A phrase such as "in, on or about the Premises" is not to be read as limited inits spatial description to "in the demised premises," for then the words "or about" would have nomeaning (id. at 159 [internal quotation marks omitted]). This is a phrase of art, frequentlyused synonymously to mean "around" or "on the outside of" (id. [internal quotationmarks omitted]).
Here, there was evidence that the accident took place on the demised premises. At herdeposition, the plaintiff marked on a photograph the spot where she stood prior to the accident,which showed that she was standing on the curb in a landscaped area just in front of theMcDonald's building. She testified that she stepped off the curb and took three or four steps at aright angle to the curb, at which time the accident occurred.
In an affidavit submitted by Centro in support of its motion, Centro's expert Kim Vaussconcluded that, based on (1) the depiction of a single light pole in the site photographs and a1984 site plan, (2) the plaintiff's marking of her location on a photograph some distance to theright of that pole, (3) the scale of the site plan, and (4) the boundary of the demised premises asdepicted on the site plan, the plaintiff was still on McDonald's premises when the accidentoccurred, regardless of the direction in which she stepped off the curb.
In any event, even if the accident did not take place in, on, or about the demised premises, itdid arise out of the business conducted in the premises. The plaintiff was a customer ofMcDonald's and had just eaten in the restaurant. She was struck by a truck picking upMcDonald's garbage. Consequently, Centro made a prima facie showing that the indemnificationprovision was applicable. In opposition, McDonald's and Wong failed to raise a triable issue offact on this issue.
Centro also made a prima facie showing that it was not negligent in the design ormaintenance of the parking lot, and that, in any event, the parking lot merely furnished thecondition or occasion for the accident, and was not a proximate cause thereof (see Castillo v Amjack Leasing Corp.,84 AD3d 1298, 1298-1299 [2011]; Comolli v 81 & 13 Cortland Assoc., 285 AD2d863, 864-865 [2001]; Vayser v Waldbaum, Inc., 225 AD2d 760, 761 [1996]). Inopposition, McDonald's and Wong failed to raise a triable issue of fact as to whether Centro wasnegligent.
Accordingly, the Supreme Court should have granted that branch of Centro's motion whichwas for summary judgment on its cross claim against McDonald's for contractualindemnification.
In light of our determination, we need not reach Centro's remaining contention. Florio, J.P.,Dickerson, Chambers and Cohen, JJ., concur.