| McLaughlin v Ann-Gur Realty Corp. |
| 2013 NY Slip Op 04285 [107 AD3d 469] |
| June 11, 2013 |
| Appellate Division, First Department |
| Brian McLaughlin et al., Respondents, v Ann-GurRealty Corporation, Respondent, and Eduardo Almanzar, Appellant, et al.,Defendant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forMcLaughlin respondents. Cerussi & Spring PC, White Plains (Dennis R. Smith of counsel), for Ann-GurRealty Corporation, respondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered July 16, 2012,which, to the extent appealed from as limited by the briefs, denied defendant EduardoAlmanzar's motion for summary judgment dismissing the General Municipal Law§ 205-a and loss of consortium claims and all cross claims against him,unanimously modified, on the law, to grant the motion as to plaintiffs' claims and as todefendant Ann-Gur Realty Corporation's cross claims for contribution and contractualand common-law indemnification, and otherwise affirmed, without costs.
Plaintiff police officer was injured when he slipped off a sidewalk "step-off"extending four feet into the sidewalk area from the building line of landlord Ann-Gur'scorner-lot building and the entrance to commercial tenant Almanzar's bodega. Plaintiffs'General Municipal Law § 205-a claim, predicated upon Administrative Code ofCity of NY §§ 27-127 and 27-128 (since repealed and recodified atAdministrative Code § 28-301.1), and, belatedly, 34 RCNY 2-09 (f), should bedismissed as against Almanzar because these statutory provisions are not applicable tolessees (Zvinys v Richfield Inv.Co., 25 AD3d 358, 360 [1st Dept 2006], lv denied 7 NY3d 706 [2006]).Contrary to Ann-Gur's contention, Almanzar raised this ground for dismissal in themotion court.
Ann-Gur's cross claims against Almanzar for contribution and indemnification alsoshould be dismissed. The lease provided that Ann-Gur was responsible for all structuralrepairs to the premises, and obligated Almanzar to indemnify Ann-Gur only for lossesarising out of his [*2]or his agents' negligent acts oromissions or in connection with his occupation of the sidewalk. There is no evidence thatplaintiff's injuries arose in connection with negligence on the part of Almanzar or hisagents or any occupation by him of the sidewalk. Nor, contrary to Ann-Gur's contention,does Almanzar's undertaking to sweep, remove snowfall from and paint the sidewalkentitle it to common-law indemnification in connection with the instant plaintiff'sinjuries.
While Ann-Gur is not entitled to contribution or indemnification by Almanzar, itscross claim for breach of contract based on Almanzar's failure to name it as an additionalinsured on his general liability policy is viable to the extent of out-of-pocket damagescaused by the breach, i.e., the purchase cost of the insurance Ann-Gur procured for itself,the premiums and any additional costs such as deductibles, co-payments, and increasedfuture premiums (see Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d111 [2001]; Cucinotta v City ofNew York, 68 AD3d 682 [1st Dept 2009]). Concur—Mazzarelli, J.P.,Sweeny, Moskowitz, Manzanet-Daniels and Gische, JJ.