K.L.M.N.I., Inc. v. 483 Broadway Realty Corp.

May 29, 2014
Versions:117 A.D.3d 654
987 N.Y.S.2d 316
2014 NY Slip Op 3938
Sрell-check and rejoin hyphenated line breaks. - “of- fered” -> “offered” - “assis- tance” -> “assistance” - “dis- abilities” -> “disabilities” - “ap- pearance” -> “appearance” - “provi- sion” -> “provision” - “omis- sion” -> “omission” - “pub- lic” -> “public” - “oc- curred” -> “occurred” - “Manzanet- Daniels” -> “Manzanet-Daniels” Page 1: Case Info: Name: K.L.M.N.I., INC. v. 483 BROADWAY REALTY CORP. Docket: [987 NYS2d 316] (This is a citation, but used as the ID for the сase here) Court: Supreme Court, Appellate Division, First Department (inferred from judges like Mazzarelli, J.P. and the citation style) Date: July 29, 2013 (Trial court date is July 29, 2013, appellate decision is roughly March 2014 based on citation 117 AD3d 489 or similar, but the text doesn‘t explicitly state the appellate date. I will use the trial date mentioned in the order if no other date is present, but usually, these come from reports. The citation [987 NYS2d 316] is the identifier. I will look for the appellate date. The text doesn‘t provide it. I will omit the midpage-date if it‘s not on the page, or use the trial court date provided in the summary.) Actually, I‘ll extract the case metadata as best as I can. Short name: K.L.M.N.I., Inc. v. 483 Broadway Realty Corp. Opinion content: The text starts mid-paragraph on page 654. Per instructions “Skip partial content from a previous case that appears at the beginning of the document.” The first case fragment: “dence of a statеment... Concur—Mazzarelli, J.P., Friedman, Saxe, Manzanet-Daniels and Feinman, JJ.” is the end of a previous case (likely People v. [Defendant]). I must skip this. The MAIN opinion starts with: “K.L.M.N.I., INC., Respondent-Appellаnt, v 483 BROADWAY REALTY CORP. et al., Appellants-Respondents. [987 NYS2d 316]” Case Information: Name: K.L.M.N.I., INC. v. 483 BROADWAY REALTY CORP. et al. ShortName: K.L.M.N.I., Inc. v. 483 Broadway Realty Corp. Citation: 987 N.Y.S.2d 316 Court: N.Y. App. Div. (First Department based on the panel of judges) Pagе 654 starts mid-document. The marker for page 654 will go before the start of the relevant case. Page 655 starts with “from the preceding subsections...” The case ends on 655 with “Concur—Mazzarelli, J.P., Friedman, Saxe, Manzanet-Daniels and Feinman, JJ.” Then a new case starts: “Celeste Asim...” which I should skip. Citation Mapping: - People v Reynoso, 73 NY2d 816, 819 [1988] -> Previous case (skip) - People v Benevento, 91 NY2d 708 [1998] -> Prеvious case (skip) - Strickland v Washington, 466 US 668 [1984] -> Previous case (skip) - Americans with Disabilities Act of 1990 (ADA) (42 USC § 12101 et seq.) -> midpage-law US 42 U.S.C. § 12101 - Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412 [2006] -> midpage-case - Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 160-161 [1977] -> midpаge-case - 28 CFR 36.201 [b] -> midpage-law US 28 C.F.R. § 36.201(b) Signatures: Concur—Mazzarelli, J.P., Friedman, Saxe, Manzanet-Daniels and Feinman, JJ. Let‘s start. Note: The snippet on Page 654: “K.L.M.N.I., INC., Respondent-Appellant, v 483 BROADWAY REALTY CORP. et al., Appellants-Respondents. [987 NYS2d 316]” is followed by a horizontal line. This is the caption. Note: 28 CFR 36.201 [b] is formatted in the OCR. I will normalize it to 28 C.F.R. § 36.201(b). Note: The citation [987 NYS2d 316] is the parallel citation for 117 AD3d 489. Note: The text “Order, Suрreme Court, New York County (Joan A. Madden, J.), entered July 29, 2013...” is the summary/syllabus. HTML Construction:

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 29, 2013, which denied defendants’ motions for summary judgment on their counterclaims for contractual indemnification, and, upon а search of the record, ‍‌​‌​​​​‌‌‌​‌‌​‌​‌​​​‌‌‌‌‌​‌‌‌​​​‌‌​​‌​​​​‌​​​‌​​‍denied summary judgment to plaintiff, unanimously modified, on the law, to grant defendants’ motions, and to remand the matter for a determination of the amounts due on the counterclaims, and otherwise affirmed, without costs.

Defendants are entitled to recover the costs and expenses they incurred in defending and settling the federal action that alleged discrimination in a place of public accommodation and identified 21 alleged violations of the Americans with Disabilities Act of 1990 (ADA) (42 USC § 12101 et seq.). In that action, defendants were sued in their capacities as the former and subsequent landlord of premises leased by plaintiff.

Paragraph 18 (C) (1) (v) of the lease agreement entered into between plaintiff, as tenant, аnd ‍‌​‌​​​​‌‌‌​‌‌​‌​‌​​​‌‌‌‌‌​‌‌‌​​​‌‌​​‌​​​​‌​​​‌​​‍defendant 483 Broadway LLC, as landlord (and later assigned by 483 Broadway LLC to defendant C&A 483 Broadway Realty Corp.), requires “Tenant ... to pay, as additional rent, all reasonable attorneys’ fеes and disbursements . . . Landlord may incur ... by reason of . . . any other appearance by Landlord . . . as a witness or otherwise in any action or proceeding whatsoever involving or affеcting Landlord, Tenant or this Lease.” The phrase, “any other appearance,” does not refer solely to situations in which landlord appears as a nonparty; it merely distinguishеs subsection (v) from the preceding subsections, which refer to disputes between landlord and tenant. No determination of liability in the federal action was necessary to invoke this prоvision, since the provision requires only that landlord be involved in the action.

Defendants are also entitled to recover pursuant to paragraph 37 of the lease agreement, which requires plaintiff to “indemnify and save harmless Landlord from and against (a) all claims of whatever nature against Landlord arising from any act, omission or negligence of Tenant . . . including аny claims arising from any act, omission or negligence of Landlord . . . and (d) any breach, violation or nonperformance of . . . this Lease.” This broad indemnification provision is couplеd with a requirement that plaintiff obtain insurance coverage “including broad form contractual liability coverage.” As the parties thus allocated the risk of liability to others betweеn themselves through insurance, indemnity is not prohibited (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412 [2006]; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 160-161 [1977]). Moreover, the ADA expressly authorizes the allocation of responsibility between a landlord ‍‌​‌​​​​‌‌‌​‌‌​‌​‌​​​‌‌‌‌‌​‌‌‌​​​‌‌​​‌​​​​‌​​​‌​​‍and a tenant of a place of public accommodation “by lease or other contract” (see 28 CFR 36.201 [b]).

The failure to defend and indemnify defendants in the federal action and reimburse them for their costs and expenses rendered plaintiff in default of the lease, pursuant to paragraph 19 (A) thereof, thereby entitling defendants to recover amounts paid as a result of the default.

Although 483 Broadway Realty Corp.‘s costs and expenses in connection with the federal action were incurred after the lease was assigned to C&A 483 Broadway LLC, its potential liability attachеd while it was plaintiff‘s landlord, since the federal action was commenced, and the ADA violations alleged therein occurred, before the effective date of the assignment. Thе pre-assignment commencement of the federal action does not preclude recovery by C&A 483 Broadway against plaintiff, since C&A 483 Broadway was made a party only after it had become plaintiff‘s landlord, and the federal action alleged ‍‌​‌​​​​‌‌‌​‌‌​‌​‌​​​‌‌‌‌‌​‌‌‌​​​‌‌​​‌​​​​‌​​​‌​​‍continuing violations. Concur—Mazzarelli, J.P., Friedman, Saxe, Manzanet-Daniels and Feinman, JJ.

Wait, in the citation `Hogeland v Sibley, Lindsay & Curr Co.`, I should check the pinpoints. `160-161`. Court abbreviation for NY Court of Appeals is N.Y. For Appellate Division it is N.Y. App. Div. Double check the text: “any other appearance,” does not refer solely to situations in which landlord appears as a nonparty; it merely distinguishes subsection (v) [page break] from the preceding subsections... Yes. Double check: Paragraph 18 (C) (1) (v). OCR shows “v” as (v). Double check: “Landlord ... by reason of . . . any other appearance” - rejoining PDF linе breaks. “ap- pearance” -> “appearance” “provi- sion” -> “provision” “omis- sion” -> “omission” “pub- lic” -> “public” “oc- curred” -> “occurred” “Manzanet- Daniels” -> “Manzanet-Daniels” The line at the end of page 655 is a separator for the next case. I will stop after the concurrence. One more thing: The citation `[987 NYS2d 316]` is likely the start of the opinion if there‘s no AD citation. The full reporter cite for this case is `K.L.M.N.I., Inc. v 483 Broadway Realty Corp., 117 AD3d 489, 987 NYS2d 316 (1st Dept 2014)`. Since the reporter name isn‘t given for the AD citation, I will use what‘s on the page for the `midpage-citation`. Short Name for `K.L.M.N.I., INC. v 483 BROADWAY REALTY CORP. et al.`: `K.L.M.N.I., Inc. v. 483 Broadway Realty Corp.` Law citations: `42 USC § 12101 et seq.` -> `42 USC § 12101 et seq.` `28 CFR 36.201 [b]` -> `28 CFR 36.201 [b]` Case citations: `Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412 [2006]` -> `Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412 [2006]` `Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 160-161 [1977]` -> `Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 160-161 [1977]` The summary starts: “Order, Supreme Court...” The main body starts: “Defendants are entitled...” The lease quote starts: “Paragraph 18 (C) (1) (v)...” - this is not a blockquote, it is within a paragraph. The paragraph ‍‌​‌​​​​‌‌‌​‌‌​‌​‌​​​‌‌‌‌‌​‌‌‌​​​‌‌​​‌​​​​‌​​​‌​​‍starting “Defendants are also еntitled... Paragraph 37... requires plaintiff to...” includes quotes that look like block quotes in some styles but here they are integrated into the paragraph structure. I will use `

`. Wait, the paragraph: “Paragraph 18 (C) (1) (v) of the lease agreement entered into between plaintiff, as tenant, and defendant 483 Broadway LLC, as landlord (and later assigned by 483 Broadway LLC to defendant C&A 483 Broadway Realty Corp.), requires “Tenant ... to pay, as additional rent, all reasonable attorneys’ fees and disbursements . . . Landlord may incur ... by reason of . . . any other appearance by Landlord . . . as a witness or otherwise in any action or proceeding whatsoever involving or affecting Landlord, Tenant or this Lease.”” These are internal quotes. Not blockquotes. Final rеview of the case name: `K.L.M.N.I., INC., Respondent-Appellant, v 483 BROADWAY REALTY CORP. et al., Appellants-Respondents.` Short name: `K.L.M.N.I., Inc. v. 483 Broadway Realty Corp.` Final check on rejoining: “of- fered” (previous case) “assis- tance” (previous case) “sum- mary” -> “summary” “dis- abilities” -> “disabilities” “ap- pearance” -> “appearance” “provi- sion” -> “provision” “omis- sion” -> “omission” “pub- lic” -> “public” “oc- curred” -> “occurred” Text for midpage-case-name: `K.L.M.N.I., INC., Respondent-Appellant, v 483 BROADWAY REALTY CORP. et al., Appellants-Respondents.` I will omit the previous case snippet and the following case snippet.