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REIMBURSEMENT FOR CO-DEFENDANT'S DEFENSE COSTS REGARDING AN OFF-PREMISES INJURY NOT AWARDED PURSUANT TO LEASE

March 12, 2019 • Posted By • Contracts

Grant D. Zacharias, counsel to the firm, recently appeared in front of the Honorable Lara Genovesi in the Supreme Court of Kings County to oppose a co-defendant/landlord’s motion for summary judgment seeking reimbursement for its defense costs incurred in defending a lawsuit based upon an off-premises injury sustained by a minor child.

Our client was and is a yeshiva school operating in Rockland County, New York, and co-defendant is the owner of the building at which the school is located.  Pursuant to the parties’ lease agreement, the school was obligated to defend the owner for personal injuries “occurring in or about the premises,” language which was identical to that which was at issue in Raven v. Universal Strapping Corp., 131 A.D.3d 595 (2d Dep’t 2015), an appellate decision originating in Kings County.  The court in Raven found that such language did not apply to a common-area located on the subject premises over which the tenant/movant had no control or maintenance responsibilities. 

In the case at bar, the minor child’s injuries were sustained off the premises, in an area our client did not own or rent and for which our client had no control or maintenance responsibility.  Accordingly, Judge Genovesi denied co-defendant’s motion for summary judgment, relying upon Raven to hold that our client’s “duty to defend” and/or “indemnify” did not extend to off-premises personal injuries. 

While this ruling is a win for our client, the decision should also serve as a cautionary tale for those who draft commercial lease agreements to take great care in crafting the “indemnification” provisions of such leases to ensure that the interests of one’s client (whether landlord or tenant) are fully protected.