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Jana L. v. West 129th Street Realty Corp.10/11/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Friedman, Gonzalez, Catterson, JJ.
Index 106722/01
The underlying personal injury action was commenced by plaintiff Jana L. after she was assaulted by an intruder in her apartment on West 129th Street. The assault took place on January 25, 2001 at 12:30 P.M. Approximately 90 minutes later, ownership of the building in which the assault occurred passed from West Realty to Associates at a real estate closing which commenced at 2:00 P.M. and concluded at approximately 4:00 P.M. at law offices located in lower Manhattan.
Plaintiff initially alleged that both sets of defendants were negligent and that they had violated sections of the City Administrative Code by failing to provide adequate security in the apartment building. In answering plaintiff's Second Amended Complaint, West Realty asserted a cross claim against Associates seeking contractual indemnification.
The claim was based on a provision in the Purchase and Sale Agreement (Agreement) dated September 2000, by which West Realty contracted to sell the apartment building to Associates for $2.9 million. The provision in the Agreement, which set the date for closing as "on or before" January 30, 2001, was entitled "Indemnification" and provided, in relevant part, as follows:
Purchaser [Associates] shall indemnify and hold harmless Seller [West Realty] from any and all claims, losses, liabilities, costs, damages and expenses, including, but not limited to, court costs and reasonable attorneys' fees asserted against or incurred by Seller resulting from or arising out of the ownership, use or operation of the property on or subsequent to the Closing Date.
The closing was advanced to January 25, 2001, pursuant to an amendment, dated October 30, 2000, which also allowed for a reduction in the purchase price in the event of a closing before January 30. The record reflects that, pursuant to an Assignment of Leases Agreement, Associates assumed all the duties and obligations of the landlord as of January 25, 2001; that Associates took out a general liability policy for the building providing coverage as of 12:01 A.M. on January 25, 2001; and that Associates posted notices on the premises directing tenants to call them with any building-related business occurring "on or after January 25, 2001."
Associates moved for summary judgment on June 25, 2004. Associates argued that since it did not own, possess, control, operate, manage or maintain the subject premises at the time of the assault, it had no relationship with the premises giving rise to any duty to plaintiff.
Subsequently, West Realty cross-moved for summary judgment arguing that Associates had expressly committed itself to indemnify West Realty for any liability resulting from any incident arising on or after the closing date of January 25, 2001. West Realty also relied on a provision in the Agreement that required allocations at the closing to be adjusted as of 11:59 P.M. on the date preceding the closing, that is, as of 11:59 P.M. on January 24, 2001.
Associates asserted that neither the indemnity provision, the agreement as a whole, nor the facts underlying the agreement evinced any intent of the parties to have Associates indemnify West Realty for its own negligence. Associates further argued that the indemnity provision could be interpreted as indemnifying West Realty for the negligent acts of Associates committed between the time of closing and the end of the day; and that the
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