Preview
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NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
PRESENT: ERICA L. PRAGER, J.S.C.
ene
MICHAEL MESSINA, IAS/TRIAL PART 18
Plaintiff,
Motion Seq.: 010, 011, 012
Submission Date: 3/28/23
-against-
Index No.: 604204/2014
MORTON VILLAGE REALTY INC. and PHILLIPS.
INTERNATIONAL REALTY INC. DECISION AND ORDER
Defendants,
Xx
MORTON VILLAGE REALTY INC. and PHILLIPS
INTERNATIONAL REALTY INC.
Third-Party Plaintiffs,
-against-
MR. JOE’S PIZZERIA & RISTAURANTE,
RUAGO, LLC d/b/a PIZZA DELIGHT, INC.,
ANTO, INC., GUISEPPE FRANZELLA,
JOSEPH LOGLISCI, MICHAEL RUGGIERO,
DIG ENTERPRISE, INC., and PETE LAMARIANA.
Third-Party Defendants.
x
NYSCEF Doce. No.
Motion Sequence 10
Notice of Motion, Affirmation & Exhibits,
Memorandum of Law. 323-338
Affirmation in Opposition .. 339
Affirmation in Reply.....scccccessessesssessersssesssessseessesssesaeeneesesneesnes 403
Motion Sequence 11
Notice of Motion, Affirmation & Exhibits
Memorandum of Law........... 341-366
Affirmation in Opposition [Defendants/ Third-Party Plaintifs] 369
Affirmation in Partial Opposition [Plaintiff] aaeisanesenesanegeenen 370
Affirmation in Reply [to Defendants/Third-Party Plaintiffs]. 404.
Affirmation in Reply & Exhibit [Defendants/Third-Party
Plaintiffs Reply to Plaintiff's Partial Opposition] ecnettengeeteenenernes 405
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Motion Sequence 12
Notice of Cross-Motion, Affirmation & Exhibits,
Memorandum in Opposition to Motion and in Support of
Cross-Motion.. . 372-400
Affirmation in Opposition [Plaintiff] 401
Affirmation in Opposition to Cross-Motion and in Further
Support of Motion & Exhibits. [Defendants/Third-Party
Plaintiffs)......ccsescceessessssesssvectevecenecessceesnecisvssnanses Seabessnvcnvsneneaneseones 407-409
Upon the foregoing papers, the following motions are determined herein:
Motion Sequence 10, Motion by defendants/third-party plaintiffs MORTON VILLAGE REALTY
INC. and PHILLIPS INTERNATIONAL REALTY INC. for an Order pursuant to CPLR §4404,
§4405, and §4406, granting moving defendants/third-party plaintiffs post-trial judgment as a matter
of law on their remaining third-party claims for contractual indemnification, contribution, and breach
of contract for failure to procure insurance against third-party defendants, MR. JOE’S PIZZERIA
& RISTAURANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., and MICHAEL RUGGIERO,
prior to the anticipated damages trial.
Motion Sequence 11. Motion by third-party defendants RUAGO, LLC. d/b/a MR. JOE’S and
MICHAEL RUGGIERO, i/s/h/a RUAGO, LLC.,.d/b/a PIZZA DELIGHT, INC. and MR. JOE’S
PIZZERIA & RISTORANTE foran Order: (1) pursuant to CPLR Rule 4404(a) setting aside the jury
verdict entered as against moving third-party defendants finding them negligent and determining that
such negligence was a proximate cause of plaintiff's alleged accident, and apportioning them 31%
negligent, and, (2) upon setting aside such verdict, finding that moving thitd-party defendants were
not negligent.
Motion Sequence 12, Motion by third-party defendants RUAGO, LLC. d/b/a MR. JOE'S: and
MICHAEL RUGGIERO, i/s/h/a RUAGO, LLC., d/b/a PIZZA DELIGHT, INC. and MR. JOE'S
PIZZERIA & RISTORANTE for an Order: (1) pursuant to CPLR Rule 3211 (a)(5) disinissing the
amended third-party complaint as against the moving third-party defendants insofar as it asserts a
breachof contract claim which is time-barred; (2) dismissing thé amended thitd-party complaint for
contractual indemnification against the third-party defendants; (3) dismissing the amended-third
patty complaint insofar as it seeks contribution from third-party defendants -as barred under the
exclusivity provisions of Workers’ Compensation Law §11.
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MESSINA v. MORTON VILLAGE REALTY INC.
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BACKGROUND
This action seeks damages for personal injuries allegedly sustained by plaintiff in a slip arid
fall accident that occurred on January:9, 2014. Plaintiff alleges that. at all relevant times, he was
working as the manager of a restaurant known as MR. JOE'S PIZZERIA & RISTORANTE (the
“PIZZERIA”) (previously known as “PIZZA DELIGHT, INC.”), On the date of the accident, he
slipped and fell as a result of an icy condition on the sidewalk otitside, the rear door of the
PIZZERIA.
The PIZZERIA was owned by third-party defendant RUAGO, LLC (“RUAGO”), which was
owned in part by its principal, third-party defendant MICHAEL RUGGIERO (“RUGGIERO”), The
PIZZERIA was located in a strip mall. known as Morton Village, which was owned by
defendant/third-party plaintiff MORTON VILLAGE REALTY, INC. (“MORTON”), and managed
by defendant/third-party plaintiff PHILLIPS. INTERNATIONAL REALTY, INC. ("PHILLIPS").
RUAGO leased the space for the restaurant from MORTON pursuant to the Second Amendment
dated December 9, 2011 to the May 1,1996 Lease Agreement (the “Lease”).
On August 14, 2014, plaintiff commenced this personal injury action against MORTON and
PHILLIPS. (collectively the “MORTON Parties”). On June 5, 2015, the MORTON Parties
commenced a third-party action against
the PIZZERIA, RUAGO and RUGGIERO (collectively, the
“RUAGO Parties”), and others.{against. whom the: action was later discontinued). The original
third-party complaint asserted causes ofaction for:indemnification and contribution. On November
9, 2022, the third-party complaint was amended to add a breach of contract claim against the
RUAGO Parties for failure to procure liability insurance naming both MORTON and.PHILLIPS as
additional insureds, as provided in the Lease.
The Court refers-to the parties’ submissions for a more complete account of the procedural
history of this case. As is relevant here, on January 18, 2023, the matter proceeded to.a jury trial on
‘the issue of liability only. MORTON ard PHILLIPS presented a unified defense and were treated
as a single entity for the purposes of apportioning liability. The parties stipulated to defer the
determination of the MORTON Parties’ third-party clainis against the RUAGO Parties until:after
the determination of liability on the plaintiff's claim. On January 25, 2023, the jury returtied a
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liability verdict, apportioning fault among the parties as follows: the MORTON Parties.(41%); the
RUAGO Parties (31%);! and plaintiff (28%).
The instant post-trial motions ensued, and were submitted fordecision prior to the anticipated
trial on damages.
DISCUSSION
RUAG ies’ Motion to Set Asi he Verdict
The RUAGO Parties seek to set aside the verdict pursuant to CPLR Rule 4404(a), based upon
their contention that the verdict was against the weight of the eviderice adduced at trial. As outlined
in greater detail in their motion papers, with citations to trial testimony, the RUAGO Parties assert
that the only admissible evidence as to the cause of the icy condition upon. which plaintiff fell is that
it was created by the runoff of melted snow from the roof, which was. discharged directly onto the
sidewalk by a leader/downspout, and which re-froze-as a result of a precipitous drop in temperature.
According to the RUAGO Parties, the uncontroverted evidence demonstrates that the manner in
which the downspouts were configured constitutes a structural defect.
The RUAGO Parties assert further that, pursuant to the Lease, the responsibility for the
structural. components of the premises was bome solely by the MORTON Parties. The RUAGO
Parties cite what they view as-a concession on the part of Raymond Sohmer, the witness who.
testified on. behalfof both MORTON and PHILLIPS, to the effect that the MORTON Parties bore
sole responsibilityfor the configuration and maintenance of the leaders/downspouts, and that if ice
formed on the sidewalk as a result of water flowing from the downspouts, it was the responsibility
of the MORTON Parties to clean it up, Further, the RUAGO Parties cite the testimony of both Mr.
Sohmer and RUGGIERO, to the effect that although the Lease required the RUAGO Parties to keep
the sidewalks free of snow and ice, they were obligated to do so only if the snow and ice were
“weather related.”
In the view of the RUAGO Parties, the evidence supports only .one conclusion — that there
was no negligence on the part of the RUAGO Parties, insofar as. they had no responsibility for
' The parties agreed that RUGGIERO wouid have no personal liability, insofar as the PIZZERIA was held
in the name of its corporate owner, RUAGO.
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structural issues and no duty to clear ice created by a structural defect for which the MORTON
Parties’ were solely responsible.
Plaintiff submits partial opposition to the motion. He takes.no position with respect'to the
relief sought by the RUAGO Parties. He asserts only that.he is entitled to collect the entire sum of
the judgment from the MORTON Parties, to whom the greatest percentage of liability was allocated.
by the jury.
The MORTON Parties oppose the motion on the basis that the RUAGO Parties have not met
their heavy burden to show that the verdict could not have been reached upon any fair interpretation,
of the evidence. The MORTON Parties highlight the.evidence that the jury could have considered,
which, in their view, supports the jury’s ultimate findings.
On a post-trial motion pursuant to CPLR §4404, the Court.is authorized to set aside the
verdict as a matter of law and direct judgment in:the moving party’s favor or, alternatively, to set
aside the yerdict as contrary to the weight of the credible.evidence and grant the moving party anew
trial. CPLR §4404(a); Killonv Parrotta, 28 N.Y.3d 101, 106-107(2016). Different standards apply.
To set aside a verdictas insufficient as a matter of law, the movant must show that the verdict
was “utterly irrational” — i.e., that there was no valid line of reasoning and permissible inferences
which could possibly lead a rational person tothe conclusion reached by-the jury on the basis of the
evidence presentedat trial. See Killon, 28 N.Y.3d at 107-108; Campbell v. City of Elmira, 84N.Y.2d.
305, 509 (1994). Upon such a.showing, the verdict may be set aside and the: Court may direct
judgment in the moving party’s favor. “The test is a harsh one because a finding that a jury verdict
is not supported by sufficient evidence leads to a directed verdict terminating the action without
resubmission of the case to a jury.” Nicastro v. Park, 113 A,D.2d'129, 132'(2d Dept.1985).
To set aside-a verdict as against the weight of the evidence, the movant must show that. the
verdict could not have been reached on any fair interpretation of the evidence. See Killon, 28 N.Y¥.3d
at 107-108; Powell v Tuyn, 306 A.D.2d 335 (2d Dept.'2003). The remedy, upon such a showing; is
a hew trial. “The criteria for setting aside a jury verdict as against the weight of the evidence. are
necessarily less stringent, for such a determination results ‘only in:a new trial and does not:deprive
the parties of their right to ultimately have all disputed issues of fact resolved by a jury.” Nicastro,
113.A.D.2d at 132-33.
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The Court focuses its discussion on the less stringent:standard applicable to setting aside-a
verdict as against the weight of the evidence. If that standard cannot be met, then.the:court need not
consider the more rigorous test applicable to setting aside a verdict as legally insufficient.
It is well settled that the determination of a motion to set aside a. verdict as contrary. to the
weight of the evidence does not involve a question of law, but rather, invokes the court's discretion.
Nicastro, 113 A.D. at 133-35. Nonetheless, the Court’s discretion is not unbridled. “A preeminent
principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and
order a new trial must be exercised with considerable caution, for.in the absence of indications that
substantial justice has not been done, a successful litigant is entitled to, the benefits of a favorable
jury verdict. Fact finding is the province of the jury, not the trial court, and a court must act warily
lest overzealous enforcement of its duty to oversee the proper administration of justice leads it to
overstep its bounds and unnecessarily interfere with the fact-finding function of the jury to a degree
that amounts to an usurpation of the jury's duty.” /d,, at 133.
The Court must. attempt to balance the court's own obligation to, see that the jury's
interpretation of the evidence was fair, against the great. deference to be accorded to the. jury's
conclusion. Nicastro, 113 A.D. at 137. Whena jury, upon being presented with conflicting evidence
creatinga factual dispute, has resolved the controversy ona fair interpretation. of the evidence, that
finding should be sustained. Nicastro.v. Park, 113 A.D.2d at 134:
At bar, on the record presented, the Court does not find that the evidence was capable of only
one interpretation —i.e., that the RUAGO Parties were not negligent. Rather, the Court finds that the
testimony and documentary evidence adduced at trial presented issues of fact and credibility, and that
the jury resolved these issues on a fair interpretation of the'evidence.
On the issue of the RUAGO Parties’ duty, the applicable section of the Lease was read inte
evidence. It provided:
Section 5.06 Cleaning,
A. Tenant, at its own expense, will keep the Demised Premises and the lawns, sidewalks,
parking lots, grounds and curbs adjacent thereto, clean and in good order, in a-careful, safe
and proper manner, and free from snow, ice, dirt and rubbish...
The dutyas set forth in the Lease is unambiguious and unqualified, The obligation to keep
ithe sidewalks free from snow and ice-is not limited based ‘upon the source. of the substance, or the
mechanism by which it came to be present on the sidewalk. The Lease provides no exceptions.
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In light of the plain language of the Lease, RUGGIERO’s ‘statements that’ the Tenant’s
obligation was limited to “weather-related” snow and ice, and that in practice, he only cleaned snow
and ice from the sidewalk when it was “weather-related,” are ones that the jury was not tequited to
credit.“Great deference is accorded to the fact-finding function of the jury, and determinations
regarding the credibility of witnesses are for the jury, which had the opportunity to see and hear the
witnesses.” Cicillini v. City of New York, 15 A.D.3d 522 (2d Dept. 2005),
Although RUGGIERO’s testimony was supported by Mr. Sohmer’s testimony (that' the
MORTON Parties were responsible for cleaning up ice resulting from runoff from the downspouts),
the jury was free to discount such testimony as contrary to the unambiguous language of the Lease,
or to conclude that Mr. Sohmer’s assumption of responsibility on behalf‘of the MORTON Parties
did not relieve the RUAGO Parties of their own obligations under the Lease.
In any event, based upon the testimony of the meteorologist, Mr, Wright, the'jury could
reasonably have found that the ice upon which plaintiff fell was indeed “weather-related,” at least
in part. Based upon data from the National Weather Service, Mr. Wright testified that between
January 2 and 3, 2014, there was.a snowfall of 10-10% inches. Unseasonably warm temperatures and
rain in the morning of January 6, 2014 caused portions of snow on the roof to melt, which resulted
in water flowing down the leaders, through the downspouts and onto the sidewalk..In the afternoon
of January 6, 2014, the temperatures began to’ fall, and dropped below freezing by midnighit.
According to Mr. Wright, this temperature drop (approximately 30 degrees in twelve hours) would
have resultedin the water from the melted snow freezing solid. The temperature remained below
freezing until the time of plaintiff's accident.
Based upon the foregoing, the jury was free to find that the ice was weather-related, to the
extent that it resulted from the:accumulation.of snow and rain,.and the subsequent fluctuations. in
temperature. In such circumstances, the jury-was not required'to draw the illusive distinction between
ice forming from rainwater that fell directlyto the sidewalk, and ice forming from rainwater that was
diverted to the sidewalk. The jury was free to reject the:notion that ‘the Lease contemplated such.a
distinction and confined the Tenant's duty tothe former.
On the issue of breach of duty, the jury’s verdict is supported by the’remainder of Mr.
Wright’s testimony. Mr. Wright opined, based upon the weather conditions,.that the ice was present
for almost three days priorto the plaintiff's accident; This would support an inference of constructive
notice, as would be required for a finding of negligence on the part of the RUAGO Parties. Although.
plaintiff's own testimony is contradictory (plaintiff testified that he did not observe ice at that
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location two days before the accident, nor on the morning of the accident when lie entered the
premises through the back door), this merely presented an issue of fact:and credibility for the jury.
The Court-cannot say that the jury’s resolution thereof could ot-have been teached on any fair
interpretation of the evidence.
In sum, the Court ‘does not find that evidence so preponderates in favor of the RUAGO
Parties that the verdict holding them 31% at fault for the subject accident could not have been
reached on any fair interpretation of the evidence, See Killon, 28 N.Y.3d at 107-108. Accordingly,
the jury’s verdict may not be disturbed on the basis that it was contrary to the weight of the evidence,
It follows that neither may the verdict be disturbed.on the basis that it was legally insufficient.
The MORTON Parties’ Motion (Seq. 010) and RUAGO Parties’ Cross-Motion (Seq.
012).
The MORTON Parties seek judgment asa matterof law on their remaining third-party claims
for contractual indemnification, contribution, and breach of contract for failure to procure insurance
against third-party defendants. The RUAGO Parties cross-move to dismiss these élaims.
At the outset, the Court disposes of the MORTON Parties’ request to disregard the RUAGO
Parties’ submissions based upon. their untimeliness. Although the cross-motion was not served
within the deadline set by the Court for the submission ‘of post-trial motions, it complied
substantially with the timeframe applicable to cross-motions under the CPLR. See CPLR §2214.
That it was served one day late may be disregarded by the Court, in the exercise of its discretion,
insofar as no prejudice has been shown. See-CPLR §2001. The Court thus turns. to matters of
substance.
Indemnification and Contribution.
In the wake of the jury verdict assigning negligence (31%) to the RUAGO Parties, the
MORTON Parties seek to enforce the provisions of the Lease by which the Tenant (RUAGO).agreed
to indemnify the Landlord (MORTON) and “any managing agent” (PHILLIPS).?:The MORTON
Parties assert that the plain language of the Lease requires indemnification under the circumstances,
? Whether the managing agent for the Morton Phillips shopping center was, in-fact, the named defendant
PHILLIPS INTERNATIONAL REALTY INC or a related entity known as.Philips International Holding Corp is not
clear on the-record presented. According to their counsel, the- managing agent.is known by both naimes. Jn atiy
event, the proper name of the entity may be sorted out prior to Judgment, and does not affect the relative rights and
obligations-of the intended parties, as determined herein.
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presented here. According to the MORTON Parties, the applicable Lease provision reflects an
unmistakable intent to indemnify the Landlord, regardless of any negligence .attributed ‘to ‘the
Landlord. Moreover; citing Hogeland v. Sibley, Lindsay & Curr Co., 42.N,Y.24 153 (1977), counsel
argues that enforcement of the indemnification provision does not contravene General Obligations
Law (“GOL”) 5-321 or undermine public policy prohibiting indemnification of a party for its own
negligence. Counsel reasons that in this case, as in Hogeland, the contract was negotiated between
two sophisticated parties, and the Lease assigned the risk of loss to’a third party, by requiring the
Tenant to carry liability insurance for the mutual benefit of both parties.
Plaintiff opposes the relief sought. Citing Cavanaugh v. 4518 Assoc., 9 AD3d 14 (Ist Dept
2004), plaintiff argues that, to the extent that the indemnification provision purports to.indemnify
the Landlord for its own negligence, it is void and unenforceable.
The RUAGO Parties also oppose the relief sought, and cross-move.to dismiss the claim for
contractual indemnification. First, they argue that the circumstances at bar do not fall within the
scope of the indemnification provision. The Tenant's obligation to indemnify the Landlord doesnot
arise, in their view, unless there is fault on the part of the Tenant. To the extent that the jury found
fault on the part of the RUAGO Parties, that finding should be set:aside as against the weight of the
evidence, for the reasons stated in the RUAGO Parties” motion. Second, they argue that the
indemnification of the Landlord for its own negligence was not contemplated by the Lease. The
Lease reflects no “unmistakable intent".on the part of the Tenant to-indemnify the Landlord for its
own negligence, whether thatnegligence is exclusive'or partial. Finally, the RUAGO Parties contend
that even if the Lease purported to indemnify the Landlord for its own négligence, such a result
would be barred by GOL §5-321. Like plaintiff, the RUAGO Parties. rely upon the decision in
Cavanaugh v. 4518 Assocs., 9 A.D.3d 14 (1st Dept. 2004), and others. In addition, the RUAGO
Parties attempt to distinguish Hogeland on the basis that the Lease. was: not negotiated by two
sophisticated parties with equal bargaining power, but rather, the Lease was assigned to the RUAGO.
Parties by the former tenant, and RUAGO, a small pizzeria tenant, was not-on equal footing with
MORTON, a sophisticated strip mall owner.
In determining the-indemnification claim, the first step in the:analysis is to consider the
Janguage of the Lease. See Lesisz v. Salvation Army, 40 A.D.3d 1050, 1051 (2nd Dep’t. 2007) (“The
tight to contractual indemnification depends upon the specific language of the contract”). The:
indemnification language is set forth in Section 9.02(H), which. provides:
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Tenant, during the Term, shall indemnify, and hold harmless Landlord and any mortgagee
of the Demised Premises or lessor under any ground lease thereof and any managing agent
from and against any and all.claims of any kind or naturé-arising from (i) the existence-of
or Tenant's use or misuse of the Demised Premises or the conduct, of Tenant's business or
any activity, work or things done, permitted or suffered by Tenant in, on or about the
Demised Premises, (ii) any breach or default in the performance of any obligation on
Tenant's part to be performed under the terms of this Lease, or arising from any negligence
or tortious act.or omission of Tenant, or any of Ténant’s agents, invitees, contractors,
subcontractors; licensees, servants, employees or sublessees,. and (iii) all costs, attorney's
fees, expenses and liabilities incurred in the defense: of any such claims oi any action or
proceeding brought thereon.
The Lease unambiguously requires the Tenant to indemnify the Landlord for “any arid all
claims of any kind or nature” arising from “any negligence or tortious act.or omission” on the part
of the Tenant. In view of the jury’s finding that the RUAGO Parties’ were negligent and that such
negligence was partially responsible for the plaintiff's accident, the Court need not consider whether
any other basis for indemnification articulated in Section 9.02(H) is applicable.
The question then becomes whether or not the Lease contemplates indemnification of the
Landlord when the Landlord is also found to be at fault. In Hogeland v Sibley, Lindsay & Gurr Co.,
42 N-Y.2d 153 (1977), the jury had found that the landlord and the tenant shared resporisibility for
the plaintiff's accident, and apportioned 60% liability to the landlord-and 40% to the: tenant. In
determining whether or not the:indemnification provision applied, the Court of Appeals rejected the
tule that contracts will not be construed to indemnify a party against its.own négligence unless such
intention is expressed in unequivocal terms. “Instead, in such cases we now look to the ‘unmistakable
intent of the parties.”” Hogeland, 42 N.Y.2d at 159. “It suffices that the agreement between the
parties connotes an intention to indemnify which can be clearly implied from the ‘language and
purposes of the entire agreement.” /d, (internal citations and quotation marks omitted).
The lease in Hogeland provided for indemnification of the landlord for “ali claims of
whatever nature” arising from.(a) the negligence of the tenant, (b) any accident occurring “in:or
about” the leased premises, or (c) the negligence of the tenant anywhere in the shopping center. The
Court of Appeals noted that the subsections speaking of negligence did not expressly-exempt the
tenant from its obligation to. indemnify in the event that its negligence was shared with that of the
landlord. Further, the Court found thatthe second subsection, making no reference:to negligence on
the part of either the landlord or the tenant,-supported the right to. indemnification in the event that
such negligence was shared. The.Court also noted that the lease required the Tenant to purchase
insurance for the partiés’ mutual benefit, not only to protect both parties against liability to third
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parties, but also to cover any indemnity claims that the landlord might bring against the tenant. Based
upon the foregoing, the Court of Appeals held that the.lease reflected'the. unmistakable intent: to
indemnify the landlord under the circumstances in-which liability to a third party’ was shared.
At bar, the Court finds that the indemnification provision in the Lease is substantially similar
in breadth to the indemnification provision considered in Hogeland. The language of the Lease
contemplates indemnification for “any and all claiins of any kind or naturé” arising from virtually
any circumstances involving the Demised Premises. Read in the disjunctive, Subsection (i) includes
claims arising from the “existence of..... the Demised Premises” or “the Tenant's use .,. of the
Demised Premises” or “the conduct of ... any activity ... permitted or suffered by'Tenant in, on or
about the Demised Premises.” Subsection (ii), which requires fault on the part of the Tenant, does
not require the Tenant to be wholly at fault, but requires indemnification when there is. “any
negligence” on the part of the Tenant. Neither subsection (i) nor subsection (ii) expressly excludes
indemnification in the event that liability for the occurrence is shared with the Landlord.
Moreover, the Court notes that Section 9,02(C) of the Lease required the Tenant to.purchase
comprehensive liability insurance for the parties’ mutual benefit, which also.included “contractual
liability insurance against the liability assumed under’ Section 9.02H of this lease [the
indemnification provision],” which the Court found significant in Hogeland.
Guided by the decision in Hogeland, this Court finds that the Lease “connotes an intention
to indemnify which can be clearly implied from the language and purposes of the entire agreement,”
and which includes an intent to indemnify under the circumstances at bar, where responsibility for
the subject occurrence is shared, in part, between the Landlord:and the Tenant.
The Court finds further that the indemnification of the MORTON Parties pursuant to the
Lease is not barred by GOL §5-321.' In Hogeland, the Court of appeals observed that the legislative
history and the statute's invalidation of agreements “exempting” lessors from liability for damages
resulting from their own negligence “strongly suggests that [it] was directed primarily.to exculpatory
clausesin leases whereby lessors are excused from direct liability for otherwise valid claims which
3 GOL § 5-321 provides: “Every covenant, agreement or understanding in or in connection with or
collateral to any lease of real property exempting
the lessor from liability. for damages for injuries to person of
Property caused by-or resulting from the negligence of the lessor, his agents, servants or employees, in the operation
or maintenance of the deinised premises or the real property containing the demised-premises shall be deemed to: be
void as against public policy and wholly unenforceable."
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might be brought against them by others.” Hogeland, 42 N.Y.2d at 160. Under'the circumstance of
the case before it, where the subject lease had been negotiated at arm's length by two Sophisticated
business entities, and required the tenant to maintain comprehensive liability insurance, the Court
of Appeals held that GOL § 5-321 did not preclude the landlord's indeninification claim. The Court
reasoned:
“It isagainst this background of declared purpose that the indemnification clauses before
us. must be considered. So analyzed, [the landlord] is not exempting itself from liability to
the'victim for its own.negligence. Rather, the parties aré-allocating the risk of liability to
third parties between themselves, essentially through the employment of insurance. Courts
do not, as a general matter, look unfavorably on agreements which, by requiring parties to
carry insurance, afford protection to the public.”
Id, at 161. See.also Great Northern Ins. Co. y. Interior Const. Corp., 7 N.Y.3d 412 (2006).
The Court finds no meaningful distinction between Hogeland and the case at bar, Ag in
Hogeland, this case involves a commercial lease negotiated between two business entities, whose
principals, if not adequately “sophisticated” themselves, sought and obtained the advice of counsel
prior to entering into the Lease. That the Lease was negotiated by RUAGO, and not merely assigned
to it,is evidenced by the fact that the Lease was:amended by the parties as reflected in the Second
Amendment dated as of December 9, 2011. As in Hogeland, the Lease included a broad
indemnification provision, coupled with an insurance procurement requirement. That arrangement
afforded third parties. adequate recourse for any damages. suffered. In addition, the Lease
contemplated that the insurer would bear ultimate responsibility for the indemnification- payment.
“Where, 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 themsélves, General Obligations
Law § 5-321 does not prohibit indemnity.” Great Northern, 7N.Y.3d at 419. Seealso Gary v. Flair
Beverage Corp., 60 A.D:3d 413.(1* Dept..2009).
The reliance’ by plaintiff and the RUAGO Parties upon the decision in Cavanaugh v. 4518
Assocs., 9 A.D.3d 14 (ist Dept. 2004) is misplaced. Although arguably analogous, that case was.a
Labor Law case which:concerned an indemnification provision in a.construction contract, as opposed
to a lease. More significantly, that case was decided pursuant to General Obligations Law § 5-322.1
rather than General Obligations Law § 5-321. As noted by the Court in Cavanaugh, the'legislature
enacted General Obligations Law § 5-322.1 four years after Hogeland was decided,"to prohibit
indemnity agreements in which owners or contractors sought to pass along the tisks for their own
negligent actions to other contractors or subcontractors, even if the accident was caused only in part
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by the owner's or contractor's negligence." Cavanaugh,9 A.D.3dat 120, quoting Brown v Two Exch.
Plaza Partners, 76 N.Y.2d 172, 180 (1990). Notably, the legislature opted to enact a. separate
provision specifically applicable in the Labor Law context, reflecting the distinct.considerations
applicable in such'context.* No amendment to GOL §5-321 was'enacted in response to the decision:
in Hogeland, Hogeland remains the law to date with respect to agreements pertaining to lessors, as
reaffirmed in Great Northern, supra, and Gary v Flair, supra, among others,
The remaining cases cited by the RUAGO Parties are factually distinguishable, Forexample,
in a few of the cases cited, the agreement at issue was not between. two sophisticated’ business
entities and/or did not include any requirement to procure insurance [é:g., Bartels v Eack, 164
A.D.3d 1202 (2nd Dept. 2018); Mendieta y. 333 Fifth Ave. Ass'n,.65 A.D.3d 1097 (2d Dept. 2009);
Delgiudice v. Papanicolaou, 5 A.D.3d 236 (1st Dept. 2004)]..In at least one other, the landlord
sought indemnification by the tenant for damages to’ the’tenanit’s property caused solely by the
landlord’s own negligence. In such circumstances, the Court wotild not’allow the landlord to
“circumvent General Obligations Law § 5-321 simply by placing the burden to procure insurance
on thetenant.”* Port Auth, v. Evergreen Int'l Aviation, Inc.,275 A.D.2d358 (2nd Dept. 2000). None
of the cases cited by the RUAGO Parties concerns the post-trial interpretation of an indemnification
clause in a real property lease, where the landlord and tenant have both been found to be negligent
and to share joint liability for the subject occurrence. Thus, none of these.cases requires, persuades,
or even allows this Courtto depart from the.rule in Hogeland and progeny.
In light of the foregoing determination with respect to indemnification, the MORTON
Parties’ claim for contribution is essentially academic. Nonetheless, it is: important to note that the
MORTON Parties.cannot maintain a claim for contribution against RUAGO, in any event, insofar.
4 Notably, Title 3 of the General Obligations Law includes several different provisions prohibiting
contracts which purport to exempt various categories of persons or entities from liability. for their'‘own negligence
‘(e:g., 5-321 [lessors]; 5-322 [caterers]; 5-322.1 {owners and contractors]; 5-323. [building service‘or maintenance
contractors] ete.).
5 Similar language was used in Cuomev. Storrie-St, Realty Inc., 255 A.D.2d 797 (3d Dept, 1998). In
Cuomo, plaintiff was injured as a result.ofa defective condition in the parking lot. The lease agreement required the
‘tenant to maintain the parking area but obligated the landiord to. perform any repairs thereto. The landlord.brought a
third party action against the tenant, with a cause of action sounding in breach of conttact for failure to procure
insurance. The Court denied a motion for summary judgment-on this:cause of action, on.the: basis that the provision
requiring the tenant to procure insurance was void pursuant to.GOL 3-321. Notably, in this case, there was tio.
finding of fact as to.the relevant liability of the landlord and/or the tenant for plaintiff's injuries. In:this Court’s view,
the difference-in procedural posture, in itself, distinguishes Ciomo from the’case-at bar, and renders it unpersuasive.
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MESSINA v. MORTON VILLAGE REALTY INC.
Index No.: 604204/2014
as such claims are barred by the exclusivity provisions of the Workers Compensation Law. See
CPLR §1401; GOL §18-201; Workers Compensation Law §11. The record reflects that
Preview
(FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: ERICA L. PRAGER, J.S.C. ene MICHAEL MESSINA, IAS/TRIAL PART 18 Plaintiff, Motion Seq.: 010, 011, 012 Submission Date: 3/28/23 -against- Index No.: 604204/2014 MORTON VILLAGE REALTY INC. and PHILLIPS. INTERNATIONAL REALTY INC. DECISION AND ORDER Defendants, Xx MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC. Third-Party Plaintiffs, -against- MR. JOE’S PIZZERIA & RISTAURANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., ANTO, INC., GUISEPPE FRANZELLA, JOSEPH LOGLISCI, MICHAEL RUGGIERO, DIG ENTERPRISE, INC., and PETE LAMARIANA. Third-Party Defendants. x NYSCEF Doce. No. Motion Sequence 10 Notice of Motion, Affirmation & Exhibits, Memorandum of Law. 323-338 Affirmation in Opposition .. 339 Affirmation in Reply.....scccccessessesssessersssesssessseessesssesaeeneesesneesnes 403 Motion Sequence 11 Notice of Motion, Affirmation & Exhibits Memorandum of Law........... 341-366 Affirmation in Opposition [Defendants/ Third-Party Plaintifs] 369 Affirmation in Partial Opposition [Plaintiff] aaeisanesenesanegeenen 370 Affirmation in Reply [to Defendants/Third-Party Plaintiffs]. 404. Affirmation in Reply & Exhibit [Defendants/Third-Party Plaintiffs Reply to Plaintiff's Partial Opposition] ecnettengeeteenenernes 405 1 of 17 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC, Index No.: 604204/2014 Motion Sequence 12 Notice of Cross-Motion, Affirmation & Exhibits, Memorandum in Opposition to Motion and in Support of Cross-Motion.. . 372-400 Affirmation in Opposition [Plaintiff] 401 Affirmation in Opposition to Cross-Motion and in Further Support of Motion & Exhibits. [Defendants/Third-Party Plaintiffs)......ccsescceessessssesssvectevecenecessceesnecisvssnanses Seabessnvcnvsneneaneseones 407-409 Upon the foregoing papers, the following motions are determined herein: Motion Sequence 10, Motion by defendants/third-party plaintiffs MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC. for an Order pursuant to CPLR §4404, §4405, and §4406, granting moving defendants/third-party plaintiffs post-trial judgment as a matter of law on their remaining third-party claims for contractual indemnification, contribution, and breach of contract for failure to procure insurance against third-party defendants, MR. JOE’S PIZZERIA & RISTAURANTE, RUAGO, LLC d/b/a PIZZA DELIGHT, INC., and MICHAEL RUGGIERO, prior to the anticipated damages trial. Motion Sequence 11. Motion by third-party defendants RUAGO, LLC. d/b/a MR. JOE’S and MICHAEL RUGGIERO, i/s/h/a RUAGO, LLC.,.d/b/a PIZZA DELIGHT, INC. and MR. JOE’S PIZZERIA & RISTORANTE foran Order: (1) pursuant to CPLR Rule 4404(a) setting aside the jury verdict entered as against moving third-party defendants finding them negligent and determining that such negligence was a proximate cause of plaintiff's alleged accident, and apportioning them 31% negligent, and, (2) upon setting aside such verdict, finding that moving thitd-party defendants were not negligent. Motion Sequence 12, Motion by third-party defendants RUAGO, LLC. d/b/a MR. JOE'S: and MICHAEL RUGGIERO, i/s/h/a RUAGO, LLC., d/b/a PIZZA DELIGHT, INC. and MR. JOE'S PIZZERIA & RISTORANTE for an Order: (1) pursuant to CPLR Rule 3211 (a)(5) disinissing the amended third-party complaint as against the moving third-party defendants insofar as it asserts a breachof contract claim which is time-barred; (2) dismissing thé amended thitd-party complaint for contractual indemnification against the third-party defendants; (3) dismissing the amended-third patty complaint insofar as it seeks contribution from third-party defendants -as barred under the exclusivity provisions of Workers’ Compensation Law §11. -2- 2-6£.17 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 BACKGROUND This action seeks damages for personal injuries allegedly sustained by plaintiff in a slip arid fall accident that occurred on January:9, 2014. Plaintiff alleges that. at all relevant times, he was working as the manager of a restaurant known as MR. JOE'S PIZZERIA & RISTORANTE (the “PIZZERIA”) (previously known as “PIZZA DELIGHT, INC.”), On the date of the accident, he slipped and fell as a result of an icy condition on the sidewalk otitside, the rear door of the PIZZERIA. The PIZZERIA was owned by third-party defendant RUAGO, LLC (“RUAGO”), which was owned in part by its principal, third-party defendant MICHAEL RUGGIERO (“RUGGIERO”), The PIZZERIA was located in a strip mall. known as Morton Village, which was owned by defendant/third-party plaintiff MORTON VILLAGE REALTY, INC. (“MORTON”), and managed by defendant/third-party plaintiff PHILLIPS. INTERNATIONAL REALTY, INC. ("PHILLIPS"). RUAGO leased the space for the restaurant from MORTON pursuant to the Second Amendment dated December 9, 2011 to the May 1,1996 Lease Agreement (the “Lease”). On August 14, 2014, plaintiff commenced this personal injury action against MORTON and PHILLIPS. (collectively the “MORTON Parties”). On June 5, 2015, the MORTON Parties commenced a third-party action against the PIZZERIA, RUAGO and RUGGIERO (collectively, the “RUAGO Parties”), and others.{against. whom the: action was later discontinued). The original third-party complaint asserted causes ofaction for:indemnification and contribution. On November 9, 2022, the third-party complaint was amended to add a breach of contract claim against the RUAGO Parties for failure to procure liability insurance naming both MORTON and.PHILLIPS as additional insureds, as provided in the Lease. The Court refers-to the parties’ submissions for a more complete account of the procedural history of this case. As is relevant here, on January 18, 2023, the matter proceeded to.a jury trial on ‘the issue of liability only. MORTON ard PHILLIPS presented a unified defense and were treated as a single entity for the purposes of apportioning liability. The parties stipulated to defer the determination of the MORTON Parties’ third-party clainis against the RUAGO Parties until:after the determination of liability on the plaintiff's claim. On January 25, 2023, the jury returtied a ~3- 3. £43. (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 liability verdict, apportioning fault among the parties as follows: the MORTON Parties.(41%); the RUAGO Parties (31%);! and plaintiff (28%). The instant post-trial motions ensued, and were submitted fordecision prior to the anticipated trial on damages. DISCUSSION RUAG ies’ Motion to Set Asi he Verdict The RUAGO Parties seek to set aside the verdict pursuant to CPLR Rule 4404(a), based upon their contention that the verdict was against the weight of the eviderice adduced at trial. As outlined in greater detail in their motion papers, with citations to trial testimony, the RUAGO Parties assert that the only admissible evidence as to the cause of the icy condition upon. which plaintiff fell is that it was created by the runoff of melted snow from the roof, which was. discharged directly onto the sidewalk by a leader/downspout, and which re-froze-as a result of a precipitous drop in temperature. According to the RUAGO Parties, the uncontroverted evidence demonstrates that the manner in which the downspouts were configured constitutes a structural defect. The RUAGO Parties assert further that, pursuant to the Lease, the responsibility for the structural. components of the premises was bome solely by the MORTON Parties. The RUAGO Parties cite what they view as-a concession on the part of Raymond Sohmer, the witness who. testified on. behalfof both MORTON and PHILLIPS, to the effect that the MORTON Parties bore sole responsibilityfor the configuration and maintenance of the leaders/downspouts, and that if ice formed on the sidewalk as a result of water flowing from the downspouts, it was the responsibility of the MORTON Parties to clean it up, Further, the RUAGO Parties cite the testimony of both Mr. Sohmer and RUGGIERO, to the effect that although the Lease required the RUAGO Parties to keep the sidewalks free of snow and ice, they were obligated to do so only if the snow and ice were “weather related.” In the view of the RUAGO Parties, the evidence supports only .one conclusion — that there was no negligence on the part of the RUAGO Parties, insofar as. they had no responsibility for ' The parties agreed that RUGGIERO wouid have no personal liability, insofar as the PIZZERIA was held in the name of its corporate owner, RUAGO. -4- 4. £ LF (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v.':MORTON VILLAGE REALTY INC. Index No.; 604204/2014 structural issues and no duty to clear ice created by a structural defect for which the MORTON Parties’ were solely responsible. Plaintiff submits partial opposition to the motion. He takes.no position with respect'to the relief sought by the RUAGO Parties. He asserts only that.he is entitled to collect the entire sum of the judgment from the MORTON Parties, to whom the greatest percentage of liability was allocated. by the jury. The MORTON Parties oppose the motion on the basis that the RUAGO Parties have not met their heavy burden to show that the verdict could not have been reached upon any fair interpretation, of the evidence. The MORTON Parties highlight the.evidence that the jury could have considered, which, in their view, supports the jury’s ultimate findings. On a post-trial motion pursuant to CPLR §4404, the Court.is authorized to set aside the verdict as a matter of law and direct judgment in:the moving party’s favor or, alternatively, to set aside the yerdict as contrary to the weight of the credible.evidence and grant the moving party anew trial. CPLR §4404(a); Killonv Parrotta, 28 N.Y.3d 101, 106-107(2016). Different standards apply. To set aside a verdictas insufficient as a matter of law, the movant must show that the verdict was “utterly irrational” — i.e., that there was no valid line of reasoning and permissible inferences which could possibly lead a rational person tothe conclusion reached by-the jury on the basis of the evidence presentedat trial. See Killon, 28 N.Y.3d at 107-108; Campbell v. City of Elmira, 84N.Y.2d. 305, 509 (1994). Upon such a.showing, the verdict may be set aside and the: Court may direct judgment in the moving party’s favor. “The test is a harsh one because a finding that a jury verdict is not supported by sufficient evidence leads to a directed verdict terminating the action without resubmission of the case to a jury.” Nicastro v. Park, 113 A,D.2d'129, 132'(2d Dept.1985). To set aside-a verdict as against the weight of the evidence, the movant must show that. the verdict could not have been reached on any fair interpretation of the evidence. See Killon, 28 N.Y¥.3d at 107-108; Powell v Tuyn, 306 A.D.2d 335 (2d Dept.'2003). The remedy, upon such a showing; is a hew trial. “The criteria for setting aside a jury verdict as against the weight of the evidence. are necessarily less stringent, for such a determination results ‘only in:a new trial and does not:deprive the parties of their right to ultimately have all disputed issues of fact resolved by a jury.” Nicastro, 113.A.D.2d at 132-33. 5. 5 £LF. (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 The Court focuses its discussion on the less stringent:standard applicable to setting aside-a verdict as against the weight of the evidence. If that standard cannot be met, then.the:court need not consider the more rigorous test applicable to setting aside a verdict as legally insufficient. It is well settled that the determination of a motion to set aside a. verdict as contrary. to the weight of the evidence does not involve a question of law, but rather, invokes the court's discretion. Nicastro, 113 A.D. at 133-35. Nonetheless, the Court’s discretion is not unbridled. “A preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for.in the absence of indications that substantial justice has not been done, a successful litigant is entitled to, the benefits of a favorable jury verdict. Fact finding is the province of the jury, not the trial court, and a court must act warily lest overzealous enforcement of its duty to oversee the proper administration of justice leads it to overstep its bounds and unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty.” /d,, at 133. The Court must. attempt to balance the court's own obligation to, see that the jury's interpretation of the evidence was fair, against the great. deference to be accorded to the. jury's conclusion. Nicastro, 113 A.D. at 137. Whena jury, upon being presented with conflicting evidence creatinga factual dispute, has resolved the controversy ona fair interpretation. of the evidence, that finding should be sustained. Nicastro.v. Park, 113 A.D.2d at 134: At bar, on the record presented, the Court does not find that the evidence was capable of only one interpretation —i.e., that the RUAGO Parties were not negligent. Rather, the Court finds that the testimony and documentary evidence adduced at trial presented issues of fact and credibility, and that the jury resolved these issues on a fair interpretation of the'evidence. On the issue of the RUAGO Parties’ duty, the applicable section of the Lease was read inte evidence. It provided: Section 5.06 Cleaning, A. Tenant, at its own expense, will keep the Demised Premises and the lawns, sidewalks, parking lots, grounds and curbs adjacent thereto, clean and in good order, in a-careful, safe and proper manner, and free from snow, ice, dirt and rubbish... The dutyas set forth in the Lease is unambiguious and unqualified, The obligation to keep ithe sidewalks free from snow and ice-is not limited based ‘upon the source. of the substance, or the mechanism by which it came to be present on the sidewalk. The Lease provides no exceptions. ~6- G_ of 417 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA vy. MORTON VILLAGE REALTY INC. Index 'No.: 604204/2014 In light of the plain language of the Lease, RUGGIERO’s ‘statements that’ the Tenant’s obligation was limited to “weather-related” snow and ice, and that in practice, he only cleaned snow and ice from the sidewalk when it was “weather-related,” are ones that the jury was not tequited to credit.“Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the jury, which had the opportunity to see and hear the witnesses.” Cicillini v. City of New York, 15 A.D.3d 522 (2d Dept. 2005), Although RUGGIERO’s testimony was supported by Mr. Sohmer’s testimony (that' the MORTON Parties were responsible for cleaning up ice resulting from runoff from the downspouts), the jury was free to discount such testimony as contrary to the unambiguous language of the Lease, or to conclude that Mr. Sohmer’s assumption of responsibility on behalf‘of the MORTON Parties did not relieve the RUAGO Parties of their own obligations under the Lease. In any event, based upon the testimony of the meteorologist, Mr, Wright, the'jury could reasonably have found that the ice upon which plaintiff fell was indeed “weather-related,” at least in part. Based upon data from the National Weather Service, Mr. Wright testified that between January 2 and 3, 2014, there was.a snowfall of 10-10% inches. Unseasonably warm temperatures and rain in the morning of January 6, 2014 caused portions of snow on the roof to melt, which resulted in water flowing down the leaders, through the downspouts and onto the sidewalk..In the afternoon of January 6, 2014, the temperatures began to’ fall, and dropped below freezing by midnighit. According to Mr. Wright, this temperature drop (approximately 30 degrees in twelve hours) would have resultedin the water from the melted snow freezing solid. The temperature remained below freezing until the time of plaintiff's accident. Based upon the foregoing, the jury was free to find that the ice was weather-related, to the extent that it resulted from the:accumulation.of snow and rain,.and the subsequent fluctuations. in temperature. In such circumstances, the jury-was not required'to draw the illusive distinction between ice forming from rainwater that fell directlyto the sidewalk, and ice forming from rainwater that was diverted to the sidewalk. The jury was free to reject the:notion that ‘the Lease contemplated such.a distinction and confined the Tenant's duty tothe former. On the issue of breach of duty, the jury’s verdict is supported by the’remainder of Mr. Wright’s testimony. Mr. Wright opined, based upon the weather conditions,.that the ice was present for almost three days priorto the plaintiff's accident; This would support an inference of constructive notice, as would be required for a finding of negligence on the part of the RUAGO Parties. Although. plaintiff's own testimony is contradictory (plaintiff testified that he did not observe ice at that -7- Zof 17 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 location two days before the accident, nor on the morning of the accident when lie entered the premises through the back door), this merely presented an issue of fact:and credibility for the jury. The Court-cannot say that the jury’s resolution thereof could ot-have been teached on any fair interpretation of the evidence. In sum, the Court ‘does not find that evidence so preponderates in favor of the RUAGO Parties that the verdict holding them 31% at fault for the subject accident could not have been reached on any fair interpretation of the evidence, See Killon, 28 N.Y.3d at 107-108. Accordingly, the jury’s verdict may not be disturbed on the basis that it was contrary to the weight of the evidence, It follows that neither may the verdict be disturbed.on the basis that it was legally insufficient. The MORTON Parties’ Motion (Seq. 010) and RUAGO Parties’ Cross-Motion (Seq. 012). The MORTON Parties seek judgment asa matterof law on their remaining third-party claims for contractual indemnification, contribution, and breach of contract for failure to procure insurance against third-party defendants. The RUAGO Parties cross-move to dismiss these élaims. At the outset, the Court disposes of the MORTON Parties’ request to disregard the RUAGO Parties’ submissions based upon. their untimeliness. Although the cross-motion was not served within the deadline set by the Court for the submission ‘of post-trial motions, it complied substantially with the timeframe applicable to cross-motions under the CPLR. See CPLR §2214. That it was served one day late may be disregarded by the Court, in the exercise of its discretion, insofar as no prejudice has been shown. See-CPLR §2001. The Court thus turns. to matters of substance. Indemnification and Contribution. In the wake of the jury verdict assigning negligence (31%) to the RUAGO Parties, the MORTON Parties seek to enforce the provisions of the Lease by which the Tenant (RUAGO).agreed to indemnify the Landlord (MORTON) and “any managing agent” (PHILLIPS).?:The MORTON Parties assert that the plain language of the Lease requires indemnification under the circumstances, ? Whether the managing agent for the Morton Phillips shopping center was, in-fact, the named defendant PHILLIPS INTERNATIONAL REALTY INC or a related entity known as.Philips International Holding Corp is not clear on the-record presented. According to their counsel, the- managing agent.is known by both naimes. Jn atiy event, the proper name of the entity may be sorted out prior to Judgment, and does not affect the relative rights and obligations-of the intended parties, as determined herein. -8- 8 ef 17 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 presented here. According to the MORTON Parties, the applicable Lease provision reflects an unmistakable intent to indemnify the Landlord, regardless of any negligence .attributed ‘to ‘the Landlord. Moreover; citing Hogeland v. Sibley, Lindsay & Curr Co., 42.N,Y.24 153 (1977), counsel argues that enforcement of the indemnification provision does not contravene General Obligations Law (“GOL”) 5-321 or undermine public policy prohibiting indemnification of a party for its own negligence. Counsel reasons that in this case, as in Hogeland, the contract was negotiated between two sophisticated parties, and the Lease assigned the risk of loss to’a third party, by requiring the Tenant to carry liability insurance for the mutual benefit of both parties. Plaintiff opposes the relief sought. Citing Cavanaugh v. 4518 Assoc., 9 AD3d 14 (Ist Dept 2004), plaintiff argues that, to the extent that the indemnification provision purports to.indemnify the Landlord for its own negligence, it is void and unenforceable. The RUAGO Parties also oppose the relief sought, and cross-move.to dismiss the claim for contractual indemnification. First, they argue that the circumstances at bar do not fall within the scope of the indemnification provision. The Tenant's obligation to indemnify the Landlord doesnot arise, in their view, unless there is fault on the part of the Tenant. To the extent that the jury found fault on the part of the RUAGO Parties, that finding should be set:aside as against the weight of the evidence, for the reasons stated in the RUAGO Parties” motion. Second, they argue that the indemnification of the Landlord for its own negligence was not contemplated by the Lease. The Lease reflects no “unmistakable intent".on the part of the Tenant to-indemnify the Landlord for its own negligence, whether thatnegligence is exclusive'or partial. Finally, the RUAGO Parties contend that even if the Lease purported to indemnify the Landlord for its own négligence, such a result would be barred by GOL §5-321. Like plaintiff, the RUAGO Parties. rely upon the decision in Cavanaugh v. 4518 Assocs., 9 A.D.3d 14 (1st Dept. 2004), and others. In addition, the RUAGO Parties attempt to distinguish Hogeland on the basis that the Lease. was: not negotiated by two sophisticated parties with equal bargaining power, but rather, the Lease was assigned to the RUAGO. Parties by the former tenant, and RUAGO, a small pizzeria tenant, was not-on equal footing with MORTON, a sophisticated strip mall owner. In determining the-indemnification claim, the first step in the:analysis is to consider the Janguage of the Lease. See Lesisz v. Salvation Army, 40 A.D.3d 1050, 1051 (2nd Dep’t. 2007) (“The tight to contractual indemnification depends upon the specific language of the contract”). The: indemnification language is set forth in Section 9.02(H), which. provides: -9- 9. of 17. (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC, Index No.:. 604204/2014 Tenant, during the Term, shall indemnify, and hold harmless Landlord and any mortgagee of the Demised Premises or lessor under any ground lease thereof and any managing agent from and against any and all.claims of any kind or naturé-arising from (i) the existence-of or Tenant's use or misuse of the Demised Premises or the conduct, of Tenant's business or any activity, work or things done, permitted or suffered by Tenant in, on or about the Demised Premises, (ii) any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any negligence or tortious act.or omission of Tenant, or any of Ténant’s agents, invitees, contractors, subcontractors; licensees, servants, employees or sublessees,. and (iii) all costs, attorney's fees, expenses and liabilities incurred in the defense: of any such claims oi any action or proceeding brought thereon. The Lease unambiguously requires the Tenant to indemnify the Landlord for “any arid all claims of any kind or nature” arising from “any negligence or tortious act.or omission” on the part of the Tenant. In view of the jury’s finding that the RUAGO Parties’ were negligent and that such negligence was partially responsible for the plaintiff's accident, the Court need not consider whether any other basis for indemnification articulated in Section 9.02(H) is applicable. The question then becomes whether or not the Lease contemplates indemnification of the Landlord when the Landlord is also found to be at fault. In Hogeland v Sibley, Lindsay & Gurr Co., 42 N-Y.2d 153 (1977), the jury had found that the landlord and the tenant shared resporisibility for the plaintiff's accident, and apportioned 60% liability to the landlord-and 40% to the: tenant. In determining whether or not the:indemnification provision applied, the Court of Appeals rejected the tule that contracts will not be construed to indemnify a party against its.own négligence unless such intention is expressed in unequivocal terms. “Instead, in such cases we now look to the ‘unmistakable intent of the parties.”” Hogeland, 42 N.Y.2d at 159. “It suffices that the agreement between the parties connotes an intention to indemnify which can be clearly implied from the ‘language and purposes of the entire agreement.” /d, (internal citations and quotation marks omitted). The lease in Hogeland provided for indemnification of the landlord for “ali claims of whatever nature” arising from.(a) the negligence of the tenant, (b) any accident occurring “in:or about” the leased premises, or (c) the negligence of the tenant anywhere in the shopping center. The Court of Appeals noted that the subsections speaking of negligence did not expressly-exempt the tenant from its obligation to. indemnify in the event that its negligence was shared with that of the landlord. Further, the Court found thatthe second subsection, making no reference:to negligence on the part of either the landlord or the tenant,-supported the right to. indemnification in the event that such negligence was shared. The.Court also noted that the lease required the Tenant to purchase insurance for the partiés’ mutual benefit, not only to protect both parties against liability to third ~10- 10 of 12 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC, Index No.: 604204/2014 parties, but also to cover any indemnity claims that the landlord might bring against the tenant. Based upon the foregoing, the Court of Appeals held that the.lease reflected'the. unmistakable intent: to indemnify the landlord under the circumstances in-which liability to a third party’ was shared. At bar, the Court finds that the indemnification provision in the Lease is substantially similar in breadth to the indemnification provision considered in Hogeland. The language of the Lease contemplates indemnification for “any and all claiins of any kind or naturé” arising from virtually any circumstances involving the Demised Premises. Read in the disjunctive, Subsection (i) includes claims arising from the “existence of..... the Demised Premises” or “the Tenant's use .,. of the Demised Premises” or “the conduct of ... any activity ... permitted or suffered by'Tenant in, on or about the Demised Premises.” Subsection (ii), which requires fault on the part of the Tenant, does not require the Tenant to be wholly at fault, but requires indemnification when there is. “any negligence” on the part of the Tenant. Neither subsection (i) nor subsection (ii) expressly excludes indemnification in the event that liability for the occurrence is shared with the Landlord. Moreover, the Court notes that Section 9,02(C) of the Lease required the Tenant to.purchase comprehensive liability insurance for the parties’ mutual benefit, which also.included “contractual liability insurance against the liability assumed under’ Section 9.02H of this lease [the indemnification provision],” which the Court found significant in Hogeland. Guided by the decision in Hogeland, this Court finds that the Lease “connotes an intention to indemnify which can be clearly implied from the language and purposes of the entire agreement,” and which includes an intent to indemnify under the circumstances at bar, where responsibility for the subject occurrence is shared, in part, between the Landlord:and the Tenant. The Court finds further that the indemnification of the MORTON Parties pursuant to the Lease is not barred by GOL §5-321.' In Hogeland, the Court of appeals observed that the legislative history and the statute's invalidation of agreements “exempting” lessors from liability for damages resulting from their own negligence “strongly suggests that [it] was directed primarily.to exculpatory clausesin leases whereby lessors are excused from direct liability for otherwise valid claims which 3 GOL § 5-321 provides: “Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability. for damages for injuries to person of Property caused by-or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the deinised premises or the real property containing the demised-premises shall be deemed to: be void as against public policy and wholly unenforceable." -1l- ii of i272 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 might be brought against them by others.” Hogeland, 42 N.Y.2d at 160. Under'the circumstance of the case before it, where the subject lease had been negotiated at arm's length by two Sophisticated business entities, and required the tenant to maintain comprehensive liability insurance, the Court of Appeals held that GOL § 5-321 did not preclude the landlord's indeninification claim. The Court reasoned: “It isagainst this background of declared purpose that the indemnification clauses before us. must be considered. So analyzed, [the landlord] is not exempting itself from liability to the'victim for its own.negligence. Rather, the parties aré-allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public.” Id, at 161. See.also Great Northern Ins. Co. y. Interior Const. Corp., 7 N.Y.3d 412 (2006). The Court finds no meaningful distinction between Hogeland and the case at bar, Ag in Hogeland, this case involves a commercial lease negotiated between two business entities, whose principals, if not adequately “sophisticated” themselves, sought and obtained the advice of counsel prior to entering into the Lease. That the Lease was negotiated by RUAGO, and not merely assigned to it,is evidenced by the fact that the Lease was:amended by the parties as reflected in the Second Amendment dated as of December 9, 2011. As in Hogeland, the Lease included a broad indemnification provision, coupled with an insurance procurement requirement. That arrangement afforded third parties. adequate recourse for any damages. suffered. In addition, the Lease contemplated that the insurer would bear ultimate responsibility for the indemnification- payment. “Where, 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 themsélves, General Obligations Law § 5-321 does not prohibit indemnity.” Great Northern, 7N.Y.3d at 419. Seealso Gary v. Flair Beverage Corp., 60 A.D:3d 413.(1* Dept..2009). The reliance’ by plaintiff and the RUAGO Parties upon the decision in Cavanaugh v. 4518 Assocs., 9 A.D.3d 14 (ist Dept. 2004) is misplaced. Although arguably analogous, that case was.a Labor Law case which:concerned an indemnification provision in a.construction contract, as opposed to a lease. More significantly, that case was decided pursuant to General Obligations Law § 5-322.1 rather than General Obligations Law § 5-321. As noted by the Court in Cavanaugh, the'legislature enacted General Obligations Law § 5-322.1 four years after Hogeland was decided,"to prohibit indemnity agreements in which owners or contractors sought to pass along the tisks for their own negligent actions to other contractors or subcontractors, even if the accident was caused only in part -12- 12 of 12 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA vy. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 by the owner's or contractor's negligence." Cavanaugh,9 A.D.3dat 120, quoting Brown v Two Exch. Plaza Partners, 76 N.Y.2d 172, 180 (1990). Notably, the legislature opted to enact a. separate provision specifically applicable in the Labor Law context, reflecting the distinct.considerations applicable in such'context.* No amendment to GOL §5-321 was'enacted in response to the decision: in Hogeland, Hogeland remains the law to date with respect to agreements pertaining to lessors, as reaffirmed in Great Northern, supra, and Gary v Flair, supra, among others, The remaining cases cited by the RUAGO Parties are factually distinguishable, Forexample, in a few of the cases cited, the agreement at issue was not between. two sophisticated’ business entities and/or did not include any requirement to procure insurance [é:g., Bartels v Eack, 164 A.D.3d 1202 (2nd Dept. 2018); Mendieta y. 333 Fifth Ave. Ass'n,.65 A.D.3d 1097 (2d Dept. 2009); Delgiudice v. Papanicolaou, 5 A.D.3d 236 (1st Dept. 2004)]..In at least one other, the landlord sought indemnification by the tenant for damages to’ the’tenanit’s property caused solely by the landlord’s own negligence. In such circumstances, the Court wotild not’allow the landlord to “circumvent General Obligations Law § 5-321 simply by placing the burden to procure insurance on thetenant.”* Port Auth, v. Evergreen Int'l Aviation, Inc.,275 A.D.2d358 (2nd Dept. 2000). None of the cases cited by the RUAGO Parties concerns the post-trial interpretation of an indemnification clause in a real property lease, where the landlord and tenant have both been found to be negligent and to share joint liability for the subject occurrence. Thus, none of these.cases requires, persuades, or even allows this Courtto depart from the.rule in Hogeland and progeny. In light of the foregoing determination with respect to indemnification, the MORTON Parties’ claim for contribution is essentially academic. Nonetheless, it is: important to note that the MORTON Parties.cannot maintain a claim for contribution against RUAGO, in any event, insofar. 4 Notably, Title 3 of the General Obligations Law includes several different provisions prohibiting contracts which purport to exempt various categories of persons or entities from liability. for their'‘own negligence ‘(e:g., 5-321 [lessors]; 5-322 [caterers]; 5-322.1 {owners and contractors]; 5-323. [building service‘or maintenance contractors] ete.). 5 Similar language was used in Cuomev. Storrie-St, Realty Inc., 255 A.D.2d 797 (3d Dept, 1998). In Cuomo, plaintiff was injured as a result.ofa defective condition in the parking lot. The lease agreement required the ‘tenant to maintain the parking area but obligated the landiord to. perform any repairs thereto. The landlord.brought a third party action against the tenant, with a cause of action sounding in breach of conttact for failure to procure insurance. The Court denied a motion for summary judgment-on this:cause of action, on.the: basis that the provision requiring the tenant to procure insurance was void pursuant to.GOL 3-321. Notably, in this case, there was tio. finding of fact as to.the relevant liability of the landlord and/or the tenant for plaintiff's injuries. In:this Court’s view, the difference-in procedural posture, in itself, distinguishes Ciomo from the’case-at bar, and renders it unpersuasive. -13- 13-of 17 (FILED: NASSAU COUNTY CLERK 05/11/2023 I1:18 AM INDEX NO. 604204/2014 NYSCEF DOC. NO. 410 RECEIVED NYSCEF: 05/11/2023 MESSINA v. MORTON VILLAGE REALTY INC. Index No.: 604204/2014 as such claims are barred by the exclusivity provisions of the Workers Compensation Law. See CPLR §1401; GOL §18-201; Workers Compensation Law §11. The record reflects that