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FILED: NASSAU COUNTY CLERK 02/24/2015 02:22 PM INDEX NO. 600285/2013
NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 02/24/2015
14 0470G
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
- x
JASON GRAHAM, : Index No.: 60028512013
Plaintiff(s), : AFFIRMATION IN OPPOSITION
-against- : Return Date: March 4, 2015
T-MOBILE USA, INC. and ELIAS : Assigned to: Hon. John M.
PROPERTIES FLATBUSH, LLC, Galasso
Defendant(s).
X
Peter A. Cusumano, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following to be true under the
penalties of perjury pursuant to CPLR § 2106:
1. I am associated with the law offices of PAGANINI, ClOd, PINTER,
CUSUMANO & FAROLE, attorneys of record for defendants, Elias Properties
Flatbush, LLC, and as such am familiar with the facts and circumstances of this
case as reflected by the file maintained in our offices.
2. This affirmation is being submitted in opposition to the co-
defendant, T-Mobile USA, Inc. (hereinafter "T-Mobile") Motion seeking summary
judgment insofar as it seeks dismissal of the cross claims of Elias Properties
Flatbush, LLC (hereinafter ’Elias") as against T-Mobile and further insofar as it
seeks summary judgment seeking common law or contractual indemnification as
against Elias in favor of T-Mobile.
3. At the outset, Elias Properties does not oppose that portion of T-
Mobile’s Motion insofar as it seeks dismissal of the action and all claims made by
plaintiff on the ground that plaintiff failed to identify the accident location.
Accordingly, if this Court dismisses plaintiff’s claim on the basis that plaintiff is not
able to identify the specific condition complained of or accident location, then
plaintiff’s complaint should be dismissed as against all defendants thereby
disposing of this matter.
4. In the event this Court chooses not to dismiss the action, then, T-
Mobile’s Motion seeking summary judgment as against Elias Properties
dismissing the cross claims of Elias Properties as against T-Mobile and further
seeking summary judgment as against Elias Properties on T-Mobile’s cross
claims must be denied in its entirety. While co-defendant, T-Mobile cites various
portions of the lease in support of its claim that the landlord is responsible for any
defect that may have existed with respect to the parking area adjacent to the
demised premises, the lease provisions demonstrate otherwise.
5. It is true that the lease between T-Mobile and Elias Properties at
provision 2(d) defines the premises by stating that "the premises consist of the
entire building which is approximately three thousand two hundred (3,200)
rentable square feet of floor area (RSF) approximately eighty (80) feet wide and
forty (40) feet deep. The premises do not include the Exterior Area. However,
paragraph 2.3 of the lease defines Exterior Area as "all areas within the exterior
boundaries of the property which are now or hereinafter under the control of the
landlord, but which shall be made available for general use, convenience and
benefit of tenant, which Exterior Areas shall include, but not be limited to the
parking area (as defined in Section 2.4 hereof) driveways, exterior lighting, the
exterior portion of the building, walkways, landscaped and planted areas,
mechanical rooms, dumpster rooms, washrooms, lounges, shelters and other
facilities avaflable for tenant’s exclusive use, all as they may from time to time
exist.".
6. Section 2.4 of the lease sets forth in pertinent part as follows:
"Parking... Tenant and its employees, customers, invitees, contractors and
agents, shall have full access to, and exclusive use of, the parking area adjacent
to the building located on the property (the ’Parking Area’). Landlord shall not
permit any other person or entity to use the parking area nor permit posting of
any signs to indicate that parking is for anyone’s exclusive use on the property
other than for tenant. Tenant shall have the right to install and maintain exterior
lighting in the parking lighting in compliance with the Applicable Law.".
7. While co-defendant discusses paragraph 6.1(c) of the lease
concerning landlord’s obligations, regarding maintenance and repair, these are
with respect to the Premises, which does not include the Exterior Areas, per
paragraph 2(d) defining premises.
8. The lease further contains a provision at paragraph 7.1 entitled
"Maintenance of Exterior Areas" which states in pertinent part as follows:
"Landlord covenants and agrees that it shall maintain, or cause to be maintained,
all structural component of the Building and the Property in a "first-class" manner as
the term is understood in the general geographic area of the Building, at Landlord’s
sole cost and expense. Such repairs, replacements and maintenance shall include
(without limitation) all structural components of the Property, and the maintenance,
replacement, operation, insurance, and repair of the roof, exterior walls, concrete
slab, and foots. Notwithstanding anything to the contrary contained in this
Lease, Tenant shall be responsible to maintain, repair and replace the
Exterior Areas, including, without limitation, removal of snow, ice and debris
from the sidewalks in the Exterior Areas, and to clean and maintain the
gutters of the Building.". [emphasis added].
9. As can be seen, the critical language in this section.
"Notwithstanding anything to the contrary contained in this Lease, Tenant shall
be responsible to maintain, repair and replace the Exterior Areas...", squarely
places the obligation to maintain, repair and replace the Exterior Areas on the
tenant. While T-Mobile cites portions of the language of pp. 7.1 of the lease in
paragraph 22 of its Affirmation in support of its motion, it does not include the
language "Notwithstanding anything to the contrary contained in this lease".
10. Plaintiff’s claim in this case is that he fell, when his left foot got
stuck in a hole in the parking lot. See pages 22 and 24 of plaintiff’s deposition
transcript annexed has Exhibit G to T-Mobile’s moving papers.
11. In view of said testimony concerning a claimed defect on the
pavement of the parking area and the lease responsibility of the tenant set forth
in paragraph 7.1 of the lease requiring T-Mobile to maintain, repair and replace
the Exterior Areas, which include the parking area, it is clear that said lessee was
responsible for any defect existing with respect to said parking area.
12. Pursuant to the indemnification provision contained in paragraph
13.1 of the lease, tenant T-Mobile must indemnify the landlord for claims,
damages, injuries including reasonable attorneys’ fees for injuries arising in
connection with third party claims arising out of any breach or default by tenant in
the performance of any of its obligations under this lease.
13. Clearly, the lessee T-Mobile breached and defaulted in its
obligation contained within paragraph 7.1 of the lease to maintain, repair and
replace the Exterior Area.
14. Therefore, Elias is entitled to contractual indemnification as against
co-defendant T-Mobile as requested in the companion motion made by Elias
Properties for said relief.
15. From the foregoing, T-Mobile’s motion seeking dismissal of its
cross claims of Elias as against T-Mobile and further seeking summary judgment
on its cross caims against Elias Properties must be denied in its entirety.
WHEREFORE, it is respectfully requested that the Motion of T-Mobile
USA insofar as it seeks any relief as against Elias Properties Flatbush, LLC be
denied in its entirety.
Dated: Melville, New York
February 24, 2015
(/Zc
jDeter A. Cusumano
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FILED: NASSAU COUNTY CLERK 02/24/2015 02:22 PM INDEX NO. 600285/2013 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 02/24/2015 14 0470G SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU - x JASON GRAHAM, : Index No.: 60028512013 Plaintiff(s), : AFFIRMATION IN OPPOSITION -against- : Return Date: March 4, 2015 T-MOBILE USA, INC. and ELIAS : Assigned to: Hon. John M. PROPERTIES FLATBUSH, LLC, Galasso Defendant(s). X Peter A. Cusumano, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106: 1. I am associated with the law offices of PAGANINI, ClOd, PINTER, CUSUMANO & FAROLE, attorneys of record for defendants, Elias Properties Flatbush, LLC, and as such am familiar with the facts and circumstances of this case as reflected by the file maintained in our offices. 2. This affirmation is being submitted in opposition to the co- defendant, T-Mobile USA, Inc. (hereinafter "T-Mobile") Motion seeking summary judgment insofar as it seeks dismissal of the cross claims of Elias Properties Flatbush, LLC (hereinafter ’Elias") as against T-Mobile and further insofar as it seeks summary judgment seeking common law or contractual indemnification as against Elias in favor of T-Mobile. 3. At the outset, Elias Properties does not oppose that portion of T- Mobile’s Motion insofar as it seeks dismissal of the action and all claims made by plaintiff on the ground that plaintiff failed to identify the accident location. Accordingly, if this Court dismisses plaintiff’s claim on the basis that plaintiff is not able to identify the specific condition complained of or accident location, then plaintiff’s complaint should be dismissed as against all defendants thereby disposing of this matter. 4. In the event this Court chooses not to dismiss the action, then, T- Mobile’s Motion seeking summary judgment as against Elias Properties dismissing the cross claims of Elias Properties as against T-Mobile and further seeking summary judgment as against Elias Properties on T-Mobile’s cross claims must be denied in its entirety. While co-defendant, T-Mobile cites various portions of the lease in support of its claim that the landlord is responsible for any defect that may have existed with respect to the parking area adjacent to the demised premises, the lease provisions demonstrate otherwise. 5. It is true that the lease between T-Mobile and Elias Properties at provision 2(d) defines the premises by stating that "the premises consist of the entire building which is approximately three thousand two hundred (3,200) rentable square feet of floor area (RSF) approximately eighty (80) feet wide and forty (40) feet deep. The premises do not include the Exterior Area. However, paragraph 2.3 of the lease defines Exterior Area as "all areas within the exterior boundaries of the property which are now or hereinafter under the control of the landlord, but which shall be made available for general use, convenience and benefit of tenant, which Exterior Areas shall include, but not be limited to the parking area (as defined in Section 2.4 hereof) driveways, exterior lighting, the exterior portion of the building, walkways, landscaped and planted areas, mechanical rooms, dumpster rooms, washrooms, lounges, shelters and other facilities avaflable for tenant’s exclusive use, all as they may from time to time exist.". 6. Section 2.4 of the lease sets forth in pertinent part as follows: "Parking... Tenant and its employees, customers, invitees, contractors and agents, shall have full access to, and exclusive use of, the parking area adjacent to the building located on the property (the ’Parking Area’). Landlord shall not permit any other person or entity to use the parking area nor permit posting of any signs to indicate that parking is for anyone’s exclusive use on the property other than for tenant. Tenant shall have the right to install and maintain exterior lighting in the parking lighting in compliance with the Applicable Law.". 7. While co-defendant discusses paragraph 6.1(c) of the lease concerning landlord’s obligations, regarding maintenance and repair, these are with respect to the Premises, which does not include the Exterior Areas, per paragraph 2(d) defining premises. 8. The lease further contains a provision at paragraph 7.1 entitled "Maintenance of Exterior Areas" which states in pertinent part as follows: "Landlord covenants and agrees that it shall maintain, or cause to be maintained, all structural component of the Building and the Property in a "first-class" manner as the term is understood in the general geographic area of the Building, at Landlord’s sole cost and expense. Such repairs, replacements and maintenance shall include (without limitation) all structural components of the Property, and the maintenance, replacement, operation, insurance, and repair of the roof, exterior walls, concrete slab, and foots. Notwithstanding anything to the contrary contained in this Lease, Tenant shall be responsible to maintain, repair and replace the Exterior Areas, including, without limitation, removal of snow, ice and debris from the sidewalks in the Exterior Areas, and to clean and maintain the gutters of the Building.". [emphasis added]. 9. As can be seen, the critical language in this section. "Notwithstanding anything to the contrary contained in this Lease, Tenant shall be responsible to maintain, repair and replace the Exterior Areas...", squarely places the obligation to maintain, repair and replace the Exterior Areas on the tenant. While T-Mobile cites portions of the language of pp. 7.1 of the lease in paragraph 22 of its Affirmation in support of its motion, it does not include the language "Notwithstanding anything to the contrary contained in this lease". 10. Plaintiff’s claim in this case is that he fell, when his left foot got stuck in a hole in the parking lot. See pages 22 and 24 of plaintiff’s deposition transcript annexed has Exhibit G to T-Mobile’s moving papers. 11. In view of said testimony concerning a claimed defect on the pavement of the parking area and the lease responsibility of the tenant set forth in paragraph 7.1 of the lease requiring T-Mobile to maintain, repair and replace the Exterior Areas, which include the parking area, it is clear that said lessee was responsible for any defect existing with respect to said parking area. 12. Pursuant to the indemnification provision contained in paragraph 13.1 of the lease, tenant T-Mobile must indemnify the landlord for claims, damages, injuries including reasonable attorneys’ fees for injuries arising in connection with third party claims arising out of any breach or default by tenant in the performance of any of its obligations under this lease. 13. Clearly, the lessee T-Mobile breached and defaulted in its obligation contained within paragraph 7.1 of the lease to maintain, repair and replace the Exterior Area. 14. Therefore, Elias is entitled to contractual indemnification as against co-defendant T-Mobile as requested in the companion motion made by Elias Properties for said relief. 15. From the foregoing, T-Mobile’s motion seeking dismissal of its cross claims of Elias as against T-Mobile and further seeking summary judgment on its cross caims against Elias Properties must be denied in its entirety. WHEREFORE, it is respectfully requested that the Motion of T-Mobile USA insofar as it seeks any relief as against Elias Properties Flatbush, LLC be denied in its entirety. Dated: Melville, New York February 24, 2015 (/Zc jDeter A. Cusumano