Pagan v. Salib

Opinion

Pagan v Salib

2026 NY Slip Op 05110

August 26, 2026

Appellate Division, Second Department

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

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

Daniel Pagan, plaintiff,

v

Nabil Salib, et al., defendants, Chikoos Beauty Bar, respondent, 77th Avenue Commons, LLC, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2025-05002, 2025-05004, (Index No. 71307575/23)

Lara J. Genovesi, J.P.

Barry E. Warhit

Laurence L. Love

Susan Quirk, JJ.

Kevin P. Westerman, Garden City, NY (Arlene E. Lewis of counsel), for appellant.

Michael E. Pressman, New York, NY (Gregory Jakubow of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant 77th Avenue Commons, LLC, appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered March 10, 2025, and (2) an interlocutory judgment of the same court entered March 12, 2025. The order, insofar as appealed from, granted those branches of the motion of the defendant Chikoos Beauty Bar which were for summary judgment dismissing the complaint and the second, third, and fourth cross-claims of the defendant 77th Avenue Commons, LLC, insofar as asserted against it. The interlocutory judgment, insofar as appealed from, upon the order, is in favor of the defendant Chikoos Beauty Bar and against the plaintiff dismissing the complaint insofar as asserted against that defendant and is in favor of the defendant Chikoos Beauty Bar and against the defendant 77th Avenue Commons, LLC, dismissing the second, third, and fourth cross-claims asserted by the defendant 77th Avenue Commons, LLC, against the defendant Chikoos Beauty Bar.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the appeal from so much of the interlocutory judgment as dismissed the complaint insofar as asserted against the defendant Chikoos Beauty Bar is dismissed, as the defendant 77th Avenue Commons, LLC, is not aggrieved by that portion of the interlocutory judgment (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,

ORDERED that the interlocutory judgment is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Chikoos Beauty Bar.

The appeal from the order must be dismissed, as the order was superseded by the interlocutory judgment (see Sweeney v Stark, 216 AD3d 1193, 1194). The issues pertaining to the dismissal of the second, third, and fourth cross-claims of the defendant 77th Avenue Commons, LLC (hereinafter 77th Avenue), are brought up for review and have been considered on the appeal from the interlocutory judgment.

The plaintiff allegedly was injured when he tripped and fell on an uneven sidewalk [*2]condition that partially abutted a premises occupied by the defendant Chikoos Beauty Bar (hereinafter Chikoos) and owned by 77th Avenue. The plaintiff commenced this action against, among others, 77th Avenue and Chikoos to recover damages for personal injuries that he allegedly sustained as a result of the accident. In its answer, 77th Avenue asserted, among other things, cross-claims against Chikoos, including for contractual indemnification (second cross-claim), contribution (third cross-claim), and common-law indemnification (fourth cross-claim). In an order entered March 10, 2025, the Supreme Court, inter alia, granted those branches of Chikoos's motion which were for summary judgment dismissing the complaint and 77th Avenue's second, third, and fourth cross-claims insofar as asserted against Chikoos. In an interlocutory judgment entered March 12, 2025, the court, among other things, dismissed the complaint and 77th Avenue's second, third, and fourth cross-claims insofar as asserted against Chikoos. 77th Avenue appeals.

Contrary to the contention of 77th Avenue, the Supreme Court properly granted those branches of Chikoos's motion which were for summary judgment dismissing 77th Avenue's second, third, and fourth cross-claims insofar as asserted against it. With respect to the second cross-claim, for contractual indemnification, against Chikoos "'[t]he right to contractual indemnification depends upon the specific language of the contract'" (Campanale v Towne Plaza Mastic Realty, LLC, 242 AD3d 818, 819, quoting Selis v Town of N. Hempstead, 213 AD3d 878, 879; see Zapototsky v Ascape Landscape & Constr. Corp., 221 AD3d 1055, 1056). "The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances" (Erazzuri v E Supermarket, Inc., 228 AD3d 732, 734 [internal quotation marks omitted]). "'A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim'" (Meadowbrook Pointe Dev. Corp. v F & G Concrete & Brick Indus., Inc., 214 AD3d 965, 970, quoting Burgos v 14 E. 44 St., LLC, 203 AD3d 688, 689). "This may be accomplished by showing that, under the circumstances, an indemnification clause in a contract between the parties either was not triggered or was otherwise inapplicable" (Burgos v 14 E. 44 St., LLC, 203 AD3d at 689; see Tolpa v One Astoria Sq., LLC, 125 AD3d 755, 756; Simon v Granite Bldg. 2, LLC, 114 AD3d 749, 755).

Here, Chikoos established its prima facie entitlement to judgment as a matter of law dismissing 77th Avenue's cross-claim for contractual indemnification insofar as asserted against Chikoos by submitting, inter alia, a lease agreement and rider between Chikoos and 77th Avenue that did not require Chikoos to make structural sidewalk repairs. Because an allegedly uneven sidewalk condition is structural in nature and Chikoos did not cause the alleged condition to arise, the indemnification clause in the lease agreement was not triggered (see Arnold v RJJR Corp., 241 AD3d 475, 477-478; Mannapova v Aufrichtig, 186 AD3d 825, 826; Alayev v Juster Assoc., LLC, 122 AD3d 886, 888). In opposition, 77th Avenue failed to raise a triable issue of fact.

The Supreme Court also properly dismissed 77th Avenue's third cross-claim, for contribution, insofar as asserted against Chikoos. "[A] party moving for summary judgment dismissing a claim for contribution must make a prima facie showing that it did not owe a duty of reasonable care independent of its contractual obligations, or a duty of reasonable care to the plaintiff" (Burgos v 14 E. 44 St., LLC, 203 AD3d at 690 [internal quotation marks omitted]; see Calle v 16th Ave. Grocery, Inc., 219 AD3d 450, 452). Here, Chikoos demonstrated, prima facie, that it did not owe a duty of care to 77th Avenue independent of Chikoos's contractual obligations and that Chikoos did not owe a duty of care to the plaintiff. The lease agreement was not so comprehensive and exclusive as to sidewalk maintenance such that Chikoos displaced 77th Avenue in 77th Avenue's duty to maintain the sidewalk and tort liability should be imposed on Chikoos for injury to the plaintiff (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140; Morris v Home Depot USA, 152 AD3d 669, 673; Berkowitz v Dayton Constr., 2 AD3d 764, 765). In opposition, 77th Avenue failed to raise a triable issue of fact.

The Supreme Court also properly dismissed 77th Avenue's fourth cross-claim, for common-law indemnification, insofar as asserted against Chikoos. "[A] party moving for summary judgment dismissing a common-law indemnification claim can meet its prima facie burden by establishing that the plaintiff's accident was not due to its own negligence" (Crutch v 421 Kent Dev., LLC, 192 AD3d 977, 981). "This may be accomplished by establishing that the moving party had [*3]no duty to maintain the area where the plaintiff was allegedly injured" (Burgos v 14 E. 44 St., LLC, 203 AD3d at 689; see Davis v Catsimatidis, 129 AD3d 766, 768). Here, Chikoos established its prima facie entitlement to judgment as a matter of law dismissing 77th Avenue's cross-claim for common-law indemnification against Chikoos by demonstrating that Chikoos had no duty to repair the uneven condition of the sidewalk that allegedly caused the plaintiff to fall (see Davis v Catsimatidis, 129 AD3d at 768; Berkowitz v Dayton Constr., 2 AD3d at 765). In opposition, 77th Avenue failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted those branches of Chikoos's motion which were for summary judgment dismissing 77th Avenue's second, third, and fourth cross-claims insofar as asserted against it.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court