        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

527
CA 13-01320
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THOMAS MAGGIO AND DIANE MAGGIO,
PLAINTIFFS,

                    V                             MEMORANDUM AND ORDER

EYE CARE PROFESSIONALS OF WESTERN NEW
YORK, LLP, DEFENDANT-RESPONDENT,
AND 4703 TRANSIT ROAD REALTY, LLC,
DEFENDANT-APPELLANT.


LAW OFFICES OF DESTIN C. SANTACROSE, BUFFALO (RICHARD S. POVEROMO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JOHN R.
CONDREN OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered April 15, 2013. The order, among other
things, granted that part of the motion of defendant Eye Care
Professionals of Western New York, LLP, for summary judgment
dismissing the contractual indemnification cross claim of defendant
4703 Transit Road Realty, LLC, and denied that part of the motion of
defendant 4703 Transit Road Realty, LLC, for summary judgment on its
contractual indemnification cross claim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Thomas Maggio (plaintiff) while working in the
attic above an unoccupied commercial rental space owned by defendant
4703 Transit Road Realty, LLC (landlord). According to his deposition
testimony, plaintiff was in the process of building a plywood platform
or walkway in the attic above the unoccupied space when he slipped off
a joist and fell through the ceiling to the cement floor in the
unoccupied space, 11 feet below. Defendant Eye Care Professionals of
Western New York, LLP (tenant) leased the adjacent separate commercial
space from the landlord. The lease contains an indemnification
provision providing that the tenant is to indemnify the landlord for
any accident that occurs “in or about the Leased Premises and common
areas.” The lease does not define or identify any common areas within
the building, and a diagram of the “Leased Premises” appended to the
lease does not depict any common areas in the building. Supreme
Court, as relevant on appeal, granted that part of the tenant’s motion
                                 -2-                           527
                                                         CA 13-01320

for summary judgment dismissing the cross claim for contractual
indemnification and denied that part of the landlord’s motion for
summary judgment on that cross claim, and the landlord appeals. We
affirm.

     The threshold issue for our determination is whether the
indemnification provision in the contract was triggered, i.e., whether
“the contractual language evinces an ‘unmistakable intent’ ” on the
part of the tenant to indemnify the landlord (Great N. Ins. Co. v
Interior Constr. Corp., 7 NY3d 412, 417), and we conclude that it was
not triggered. Although the phrase “in or about the Leased Premises
and common areas” may be construed in appropriate circumstances to
include locations outside of a demised premises, such as a sidewalk
(see e.g. Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 159), we
conclude that here the indemnification provision cannot be construed
as an agreement to indemnify the landlord for accidents occurring
within a separate but unoccupied rental unit of a commercial building
over which the landlord has exclusive control and in which the tenant
has no beneficial interest (see Corrado v 80 Broad, LLC, 101 AD3d 631,
631). Having concluded that the indemnification provision was not
triggered (cf. Great N. Ins. Co., 7 NY3d at 418), we do not reach the
landlord’s contentions regarding its alleged enforceability under
General Obligations Law § 5-321.




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
