The following papers numbered 1 to 22 read on this motion for an order granting the Schmidt Defendants summary judgment pursuant to CPLR §3212 on their cross-claim for contractual and common-law indemnification against the 108 Street Lumber, Inc. and cross-motion by the 108 Street Lumbar defendants for summary judgment.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition.....................................................5 - 9

Reply Affirmation..................................................................10 - 12

Notice of Cross-Motion.........................................................13 - 16

Affirmation in Opposition.....................................................17 - 19

Reply Affirmation.................................................................20 - 22

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Defendants Frances Schmidt, "John Doe #1" as the Trustee of the Shirley Bloom Stewart Trust and "John Doe No.2"as the Trustee of the Shirley Bloom Stewart Trust (collectively referred to as the "Schmidt" defendants), move for an Order granting summary judgment pursuant to CPLR [*2]3212 on the cross-claim for contractual and common-law indemnification. Defendants Bernardino Rodriguez, Individually and d/b/a 108 Street Lumber Inc., and Guillermo Torres, Individually and d/b/a 108 Street Lumber Inc. (collectively as "108 Street Lumbar") move for an Order granting summary judgment dismissing the complaint and all cross-claims as there are no triable issues of fact as to the negligence of the defendants.

Plaintiff Eva Espinoza ("Espinoza" or "Plaintiff") brought the within action to recover for personal injuries allegedly sustained on December 27, 2010, when she was caused to slip and fall upon the sidewalk adjacent to the premises known as 49-20 108th St. Corona, New York ("Premises"). 108 Street Lumbar is located at the Premises and the defendants Schmidt and Bloom are landlords for the Premises.

It is undisputed that a major snow storm, which affected the subject Premises, began on December 26, 2010 and ended sometime on December 27, 2010. According to weather reports, more than a foot of snow and ice fell at the subject location.

Espinoza testified at her deposition that it began snowing "a lot" the night before the accident and stopped at approximately 9:00 AM the day of the accident and that the accident occurred at approximately 2:00 PM. Plaintiff also states that it was not snowing or raining at the time of the accident. Espinoza also testified that she never personally complained of the sidewalk prior to her fall.

Frances Schmidt and Shirley Bloom Trust owned equal parts of the Premises. Schmidt testified that he only collected rents, did not retain any management responsibilities and that the tenants were responsible for snow removal at the Premises.

Guillermo Tavares s/h/a Guillermo Torres (hereinafter "Tavares"), vice president of 108 Street Lumber, testified that he generally handled the shoveling of snow. Tavares also testified that it began snowing on December 26, 2010 and that it was still snowing on December 27, 2010, but that snow had stopped between 1 and 2 hours prior to the accident. Tavares testified that he finished shoveling and salting the sidewalk at approximately 10:00AM. Tavares also testified that there were no complaints concerning the subject sidewalk.

Plaintiff submits an affidavit of Mark Kramer, a licensed meteorologist, who states that the primary snowfall ended at 7:48AM on December 27, 2010 with the exception of some light snowfall between 9:49AM and 10:15AM that resulted in no additional accumulation.

With respect to the motion for indemnification, the Schmidt defendant's answer contains a cross-claim against the 108 Street Lumber defendants for common law and contractual indemnity.

The lease for the subject property states the following with respect to snow removal:

"Tenant shall be wholly and completely responsible for the operation, maintenance and repair of the Demised Premises regardless if it is in the interior or exterior of the property. Tenant shall maintain property in a safe and proper order...Tenant shall (iii) arrange and pay for the maintenance and repair of the parking area and all other areas at the Demised Premises including arranging for snow removal." (Exhibit E, Rider to Lease.§6).

The Rider to the Lease also provided that the tenant was to procure liability insurance, name the owner as an additional insured and as loss payee, and, not withstanding insurance, indemnify the Owner, to wit:

"Tenant agrees to indemnify Owner and each of them against any and all damage, loss, [*3]liability costs and expense, including reasonable attorney fees and court costs resulting from arising out of or relating to or incurred in connection with the breach of any covenant of this Lease by or the negligence...or improper conduct of Tenant...." (Exhibit E, Rider to Lease, §8.C.)

Schmidt testified at his deposition that it was tenant's obligation to perform snow removal as per the lease.

For the reasons set forth below, the Schmidt defendants' motion for summary judgment on their cross-claim for contractual and common-law indemnification is granted and 108 Street Lumbar's cross-motion for summary judgment is denied.

"The right to contractual indemnification depends upon the specific language of the contract." (Reisman v. Bay Shore Union Free School Dist., 74 AD3d 772, 773 [2nd Dept 2010].) "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and surrounding circumstances." (Id. at 773 quoting George v. Marshalls of MA, Inc., 61 AD3d 925, 930 [2nd Dept 2009].) "In addition, a party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor.'" (Id. at 773 quoting Cava Const. Co., Inc. v. Gealtec Remodeling Corp., 58 AD3d 660, 662 [2nd Dept 2009].)

Here, the Schmidt defendants met their initial burdens of demonstrating their entitlement to contractual indemnification by submitting the lease and the deposition testimony of Tavares and Schmidt. The lease included an express indemnification clause in favor of the Schmidt defendants, which obligated the 108 Street Lumbar defendants , to "indemnify Owner ... against any and all damage, loss, liability costs and expense... resulting from .... the breach of any covenant of this Lease by or the negligence...or improper conduct of Tenant...." In addition, the Schmidt defendants established that they were free from negligence.

In opposition, the 108 Street Lumber defendants failed to raise a triable issue of fact as to whether the contractual indemnification clause should not be enforced. The 108 Street Lumbar defendants contend that the indemnification clause is too broad and in violation of the General Obligations Law 5-321. General Obligations Law § 5—321 deems void and unenforceable an agreement in lease "exempting the lessor from liability for damages or injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises...." However, "[w]here, as here, a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5—321 does not prohibit indemnity," (Great Northern Ins. Co. v. Interior Const. Corp., at 419; see also DiBuono v. Abbey, LLC, 95 AD3d 1062, 1065 [2nd Dept 2012]) Here, the Schmidt defendants have established, prima facie, that the purpose of the indemnification clause was not "to exempt the lessor from liability to the victim, but rather to allocate the risk of liability to third parties between the lessor and the lessee. (DiBuono v. Abbey, LLC, at 1065; Mendieta v. 333 Fifth Ave. Ass'n, 65 AD3d 1097, 1101 [2nd Dept 2009].)

For the reasons set forth above, the Schmidt defendants' motion for summary judgment on their cross-claim for contractual and common-law indemnification is granted.

CPLR §3212(b) provides, in relevant part, that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

Summary judgment is a drastic measure "that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues.'" (Doize v Holiday Inn Ronkonkoma, 6 AD3d 573, 574 [2d Dept 2004], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]); see also Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2nd Dept 2009]; Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). The role of the court in considering a motion for summary judgment is not to resolve "issues of fact or matters of credibility," but rather, to determine whether such issues exist (Pearson, 63 AD3d at 895; Kolivas v Kirchoff, 14 AD3d 493, 493 [2nd Dept 2005].) Further, "in determining a motion for summary judgment, facts alleged by the nonmoving party and inferences which may be drawn from them must be accepted as true" (Doize, 6 AD3d at 574). The party moving for summary judgment must submit "evidentiary proof in admissible form," to show that there are no material issues of fact to be decided by the court (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If a moving party meets its burden for a summary judgment, the opposing party can defeat the judgment if by "show[ing] facts sufficient to require a trial of any issue of fact" (id.)

Bernice D. Siegal, J. S. C.