Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for :___________________________________________

PapersNumbered

Notice of Motion and Affidavit Annexed...................................1

Memorandum of Law ..................................................................___2____

Affirmation in Opposition ..........................................................3

Replying Affidavit..................................................................4

____________________________________________________________________ _________ [*2]

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiff building owner and its insurer commenced this action against their tenants for indemnification and reimbursement for a personal injury claim. In a decision dated November 17, 2009, the court granted the motion of the defendant Hudson Specialty Insurance Company ("Hudson"), insurance company for defendant tenants, for summary judgment declaring that plaintiff Bali 9 Building Associates ("Bali") is not entitled to additional insurance coverage under the policy issued to the tenants for the claims against Bali in the underlying personal injury action. Plaintiffs QBE Insurance Corporation ("QBE") and Bali 9 Building Associations ("Bali") now move for leave to renew the court's November 17th decision. For the reasons set forth more fully below, plaintiffs' motion is granted.

As an initial matter, on a motion for leave to renew, the movant must allege new facts not offered on the prior motion and a reasonable justification for the failure to present those facts on the prior motion. CPLR 2221(e)(2) and (3). "This requirement, however, is a flexible one, and the court, in its discretion, may also grant renewal, in the interest of justice, upon facts which were known to the movant at the time the original motion was made." Tishman Constr. Corp. of New York City v City of New York, 280 AD2d 374 (1st Dept 2001). Plaintiffs do not submit a reasonable justification for their failure to present new facts at the time of the original motion. However, in the interest of justice, the court grants their motion to renew and, upon renewal, denies Hudson's motion for summary judgment.

The relevant facts are as follows. Daryl Patterson ("Patterson"), who is not a party to this action, initiated an action against Bali for injuries he allegedly sustained when he slipped on a patch of ice on the sidewalk adjoining Bali's property. Bali's insurer, QBE Insurance Corporation ("QBE"), forwarded the claim to Bali's tenant, McDonald's Corporation ("McDonalds") and McDonald's franchisee, Peter Samaha. McDonald's insurer, Hudson, denied the claim and plaintiffs initiated the instant action.

The lease between McDonalds and Bali contains various provisions which specify McDonalds' maintenance obligations and insurance obligations with respect to its use of the premises. In the section entitled "Landlord's Warranties and Covenants", the lease provides in relevant part:

Sidewalks:. Landlord shall maintain the sidewalks. Tenant shall keep the sidewalk in front of the Premises free and clear of snow and ice at all times. (Article 4 paragraph C).

Paragraph J of that section, "Landlord's insurance," provides that the Landlord

shall pay all premiums for and maintain in effect policies of insurance covering ... claims for personal injury ...occurring in, on or about the common areas and other portions of the building not leased to Tenant and the sidewalks and areas adjacent to the Premises under Landlord's control.

Article 5, "Tenant's Covenants," provides that the Tenant

shall also maintain and keep in force ... general public liability insurance against claims for personal injury ... occurring in, on or about the Premises or sidewalks or premises adjacent to [*3]the Premises (other than easements and common areas under the control of Landlord). (Paragraph C).

Therefore, the court correctly held that, pursuant to the Lease, McDonald's was responsible for the maintenance of sidewalks adjacent to its leased property and that it was required to obtain insurance to cover personal injuries that occurred on the leased property and the adjacent sidewalks. The court further found that, since the accident occurred on the sidewalk of 232nd Street, adjacent to the rear parking lot of Bali's property, which it believed was not leased to McDonald's, McDonald's was not obligated to obtain insurance to cover this particular incident.

Plaintiffs now present evidence that the rear parking lot was part of the property included in the lease. Although this information was available to plaintiffs at the time of the original motion, as the lease clearly describes the leased property as including the rear parking lot, it would "defeat substantive fairness" to deny plaintiffs leave to renew on this basis. Because the relevant insurance policy specifically provides that Bali is named as an additional insured for "liability arising out of the ownership, maintenance or use of that part of the premises leased to" McDonald's, and because the lease specifically requires that McDonald's maintain the sidewalks adjacent to the leased property and obtain insurance for personal injuries that occur there, the issue of which part of the premises was leased to McDonald's is a crucial fact. Therefore, in the interest of fairness, plaintiffs' motion to renew is granted, despite their failure to point out this provision in the lease in their original motion papers.

In addition, in light of the fact that the rear parking lot was included in the leased premises, the court now finds that Hudson is not entitled to summary judgment because it has failed to establish as a prime facie matter that liability in the underlying personal injury action is not based on the ownership, maintenance or use of that part of the premises leased to McDonald's and that McDonald's was not required to have insurance to cover injuries which occurred on sidewalks adjacent to the rear parking lot. Because the accident did occur on the sidewalk adjacent to property leased by McDonald's, Hudson is not entitled to summary judgment.

Accordingly, plaintiffs' motion to renew is granted and, upon renewal, defendant Hudson's motion for summary judgment is denied. This constitutes the decision and order of the court.

Dated:June 28, 2011Enter: ______________________

J.S.C.