Hernandez v. Dunkin Brands Acquisition, Inc. ( 2016 )

Hernandez v Dunkin Brands Acquisition, Inc. (2016 NY Slip Op 01294)

Hernandez v Dunkin Brands Acquisition, Inc.

2016 NY Slip Op 01294

Decided on February 24, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 24, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.

2014-02473
(Index Nos. 5007/10, 75951/10)

[*1]Maximo Hernandez, plaintiff,

v

Dunkin Brands Acquisition, Inc., defendant, Pelican Management, Inc., et al., defendants third-party plaintiffs- appellants; Andy's, LLC, third-party defendant- respondent, et al., third-party defendants.

Margaret G. Klein (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Naomi Taub], of counsel), for defendants third-party plaintiffs-appellants.

Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Nicholas P. Hurzeler of counsel), for third-party defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated January 6, 2014, as granted that branch of the motion of the third-party defendant Andy's, LLC, which was for summary judgment dismissing the third-party complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when he fell on a flight of concrete steps located outside the back door of a store operated by the third-party defendant Andy's, LLC (hereinafter Andy's). The store was located in a shopping center which was managed by the defendant third-party plaintiff Pelican Management, Inc. (hereinafter Pelican), and owned by the defendant third-party plaintiff Philrock Company, LLC (hereinafter Philrock) (hereinafter together the appellants).

In moving for summary judgment, Andy's established, prima facie, that it had no contractual obligation to maintain and repair the concrete steps (see Hahn v Wilhelm, 54 AD3d 896, 899; Morgan v Chong Kwan Jun, 30 AD3d 386, 388). In support of its motion, Andy's submitted, inter alia, the lease between Philrock, as landlord, and Andy's, as tenant. A written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162; Vale v 221 Thompson, LLC, 82 AD3d 754). Here, the lease provided that the tenant had no obligation for maintenance or repair of the exterior of the demised premises, and that the landlord was responsible for maintaining the exterior and structural portions of the building in good working order.

The evidence submitted by the appellants in opposition was insufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The appellants' remaining contentions, raised for the first time on appeal, are not properly before this Court. Accordingly, that [*2]branch of the motion of Andy's which was for summary judgment dismissing the third-party complaint insofar as asserted against it was properly granted.

To the extent that the appellants raise an issue concerning a request by Andy's for an award of an attorney's fee, that issue remains pending and undecided and, therefore, is not properly before this Court (see Boster-Burton v Burton, 73 AD3d 671, 673; Katz v Katz, 68 AD2d 536, 542-543).

BALKIN, J.P., CHAMBERS, COHEN and MALTESE, JJ., concur.

ENTER: Aprilanne Agostino Clerk of the Court