The following e-filed documents, listed by NYSCEF document number (Motion 006) 123-148 were read on this motion to/for JUDGMENT — SUMMARY.

Defendant/third-party plaintiff Renali Realty Group 1, LLC ("Renali") moves pursuant to CPLR 3212 for summary judgment on its claims for contractual and common law indemnification, breach of contract for failure to procure insurance, and attorney's fees against third-party defendant H&Y Electronics Inc d/b/a Galaxy Electronics ("H&Y).^[FN1]

This Labor Law action arose out of injuries plaintiff allegedly sustained after falling from a ladder while removing or reattaching a canvas storefront sign that was bolted into a building above the front entrance of H&Y's store (Pyankaroo v Renali Realty Group 1, LLC, 234 AD3d 533 [1st Dept 2025]). The subject building is owned by Renali. Plaintiff was employed by H&Y d/b/a Galaxy Electronics.

Renali originally entered into a lease agreement with Casa de Princesa Linen Corp., which was assigned to H&Y on July 8, 2011 (Brodie Aff., Exs. A & B [NYSCEF Doc. 142]). Renali and H&Y entered into an extension agreement and guaranty dated January 31, 2018, which extended the lease through 2027 (id. at Exhibit C).

On appeal, the First Department affirmed the trial Court's denial of plaintiff's motion for partial summary judgment under Labor Law 240 (1) (Pyankaroo v Renali Realty Group 1, LLC, 234 AD3d at 533). Accordingly, to date, there has been no finding of liability.

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing is made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment (id.). Summary judgment is a drastic remedy and must be denied if there is any doubt as to the existence of a triable issue of material fact (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

"To be entitled to common-law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury-producing work" (Naughton v City of New York, 94 AD3d 1, 10 [1st Dept 2012]). "Absent an express indemnification agreement, or a 'grave injury' as enumerated in Workers' Compensation Law § 11, an employer's liability for an employee's on-the-job injury is ordinarily limited to workers' compensation benefits" (Fleming v Graham, 10 NY3d 296, 299 [2008]).

While H&Y does not oppose that part of Renali's motion directed to its third-party claim for common law indemnification, Renali has not met its prima facie burden since there is no allegation or proof that plaintiff sustained a "grave injury." Thus, searching the record, Renali's common law indemnification claim is dismissed (see Tavarez v LIC Dev. Owner, L.P., 205 AD3d 565, 567 [1st Dept 2022]; Purcell v Visiting Nurses Foundation Inc., 127 AD3d 572, 574 [1st Dept 2015]; Bills of Particular [NYSCEF Doc. 130]).

"A party is entitled to full contractual indemnification provided that the 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances'" (Drzewinski v Atlantic Scaffold & Ladder Co., Inc., 70 NY2d 774, 777 [1987] [citation omitted]). "The right to contractual indemnification depends upon the specific language of the contract" (DiBrino v Rockefeller Ctr. N., Inc., 230 AD3d 127, [*2]136 [1st Dept 2024] [citation omitted]). "Indemnification provisions are strictly construed and a promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" (Madison Hospitality Mgt. LLC v Acacia Network Hous., Inc., 230 AD3d 1063 [1st Dept 2024] [internal quotation marks and citation omitted]).

Renali argues that it is entitled to contractual indemnification under paragraphs 12, 33, and 55 of the lease agreement (Sestito Affirm. ¶¶ 35 [NYSCEF Doc. 124]; see Lease, Brodie Aff. at Ex. A [NYSCEF Doc. 142]). Paragraph 12 of the lease provides:

"That the Landlord is exempt from any and all liability for any damage or injury to person or property caused by or resulting from steam, electricity, gas, water, rain, ice, or snow, or any leak or flow from or into any part of said building or from any damage or injury resulting or arising from any other cause or happening whatsoever unless said damage or injury be caused by or be due to the negligence of the Landlord" (id. ¶ 12).^[FN2]

That provision, which exempts damages caused by the negligence of the landlord, is not overly broad or barred by General Obligations Law § 5—322.1 (see Chiatto v Four State Commercial Devs., LLC, 236 AD3d 510, 511 [1st Dept 2025]).

Notably, the First Department recently reviewed the exact indemnification language at issue here in paragraph 12, implicitly concluding that the agreement is ambiguous as to indemnification, since it lacks express "hold-harmless" and indemnification language (Kozeli v Renali Realty, LLC (— AD3d —, 2025 NY Slip Op 06135, *1 [1st Dept 2025]). The First Department's ruling in Kozeli compels the same conclusion on this motion: while the provision in the parties' lease arguably could be construed as indemnifying Renali against third-party claims, there are issues of fact precluding judgment as a matter of law. Therefore, summary judgment on Renali's contractual indemnification claim is denied.

Renali seeks summary judgment on its breach of contract claim against H&Y based on paragraphs 31 and 58 of the lease (Lease, Brodie Aff. at Ex. A [NYSCEF Doc. 142]). "A party moving for summary judgment on its claim for failure to procure insurance meets its prima facie burden by establishing that a contract provision requiring the procurement of insurance was not complied with" (Benedetto v Hyatt Corp., 203 AD3d 505, 506 [1st Dept 2022]). "The burden then shifts to the opposing party, who may raise an issue of fact by tendering the procured insurance policy in opposition to the motion" (id.). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 559-560 [2014]).

Renali has met its prima facie burden by submitting the lease requiring H&Y to procure an insurance policy protecting Renali against liability for personal injuries sustained at the premises (Lease ¶ 31). H&Y fails to tender admissible evidence in opposition (Benedetto, 203 AD3d at 506). Therefore, Renali's motion for summary judgment on its breach of contract claim [*3]is granted, conditioned on a finding of liability against defendants on plaintiff's claims.

Summary judgment on Renali's claim to recover attorneys' fees is denied, and, searching the record, that claim is dismissed as duplicative of the contractual indemnification cause of action (see Pacheco v Georgetown Eleventh Ave. Owners LLC, — AD3d —, 2025 NY Slip Op 05923, *1 [1st Dept Oct. 28, 2025]).

Accordingly, it is

ORDERED that that part of the motion by defendant/third-party plaintiff Renali Realty Group 1, LLC seeking summary judgment is GRANTED IN PART, as follows:

(a) summary judgment on Renali's claim for breach of contract is GRANTED, conditioned on a finding of liability against Renali on plaintiff's claims;

(b) summary judgment on Renali's claim for contractual indemnification is DENIED; and

(c) summary judgment on Renali's claims for common law indemnification and for attorney's fees is DENIED and, after searching the record, those claims are DISMISSED; and it is further

ORDERED that all parties shall appear for a pre-trial conference to be calendared by the Clerk of the Court.

This constitutes the decision and order of the Court.