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