Melendez v. Bruckner Plaza Associates , 709 N.Y.S.2d 557 ( 2000 )

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 26, 1999, which granted defendant Bruckner Plaza Associates’ motion for summary judgment on the issue of conditional indemnification based upon a breach of contract to procure insurance, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff allegedly fell and was injured on a two-step perimeter staircase that connects the perimeter sidewalk around defendant Pick Quick Foods, Inc.’s (tenant) freestanding Key Food Store to the parking lot of defendant Bruckner Plaza Associates’ (landlord) shopping plaza. The landlord is the sublessor of the shopping plaza, which contains 15 stores in addition to Key Food. Plaintiff brought this action and the landlord cross-claimed and sought summary judgment against the tenant for breach of the sublease provisions requiring the tenant to procure insurance coverage for the landlord.

The motion court erred in granting summary judgment, inasmuch as an issue of fact exists as to whether the steps upon which the plaintiff fell were considered under the sublease to be a common area, as opposed to part of the demised premises for which the tenant was required to procure insurance. The sublease provides that the “sublet premises” includes the building containing the supermarket and the land thereunder, that such premises is distinct from the parking lot and common areas, sites for which the landlord is responsible, and that the tenant has use of the parking lot and common areas. The sublease does not define “common area” and the landlord has not submitted the main lease, which the sublease incorporates by reference and which perhaps contains the definition. Depending on how this factual issue is resolved, the tenant’s failure to procure coverage for the landlord may be of no consequence (see, Light v Martin Corp., 235 AD2d 363, lv denied 89 NY2d 815). Concur — Williams, J. P., Tom, Mazzarelli, Rubin and Friedman, JJ.