On appeal from Superior Court, Law Division, Hudson County.
Defendant-appellant Bidermann Industries U.S.A., Inc. (Bidermann) appeals from a summary judgment granted to codefendant Hartz Mountain Associates Inc., whose true name is Import-Hartz Associates (Hartz), on the latter's cross-claim for indemnification. Indemnity was granted based on provisions in the lease between Bidermann and codefendant Hartz. We affirm.
Plaintiff Larry Ryan brought the underlying action for personal injuries incurred in a slip and fall accident on an outside
metal stairway on January 7, 1984 at premises leased by Bidermann from Hartz in Secaucus, New Jersey. The record does not disclose the weather conditions at the time. Hartz became a party defendant after Bidermann, pursuant to leave granted, filed a third-party complaint*fn3 against it and M & W Warehouse seeking contribution and indemnification. Ryan was thereafter granted leave to amend its complaint to add Hartz and M & W Warehouse as direct defendants. Hartz cross-claimed against Bidermann for contribution, common law indemnification and contractual indemnification.
Under paragraph 8.1 of the August 10, 1982 lease, the parties had agreed:
8.1 Tenant covenants and agrees, at its sole cost and expense to indemnify and save harmless Landlord against and from any and all loss, cost, expense and liability, from claims by third parties including without being limited to, reasonable attorney's fees and court costs, arising from or in connection with (a) the conduct or management of, or from, any work or thing whatsoever done in or on the Building prior to or during the Term other than any work or thing done by or at the instance of Landlord, or any of its agents, contractors, licensees, servants or employees; (b) any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease; (c) any act or negligence of Tenant, or any of its agents, contractors, servants, employees or licensees; or (d) any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the Term, in or on the Building other than those caused by Landlord's or its contractor's, agent's, licensee's servant's,
or employees negligence ; and in case any action or proceeding is brought against Landlord by reason of any claims covered by the foregoing indemnity Tenant upon notice from Landlord agrees to resist or defend such action or proceeding by counsel reasonably satisfactory to Landlord. Counsel for Tenant's insurance carrier shall be deemed satisfactory. [Emphasis supplied].
Pursuant to Article 9 of the lease Bidermann was responsible for maintenance of the building.
Ryan's personal injury action was settled with Bidermann for $3,500. Hartz then moved for judgment on its contractual indemnification claim against Bidermann. Judge McLaughlin granted Hartz summary judgment. Hartz was also awarded attorneys' fees and costs in defending the suit pursuant to the provisions of the lease agreement.
The trial judge concluded that "the only way that either Bidermann or Hartz could be liable to the plaintiff would be if plaintiff were able to show that the property was improperly maintained." Since Bidermann was responsible for maintenance of the building, and was contractually bound to indemnify Hartz for any costs arising therefrom, summary judgment was granted in favor of Hartz.
Bidermann argues on this appeal that summary judgment was improper as questions of fact existed which prevented a grant of such relief. This assertion is based on Ryan's answer to an interrogatory asked by Bidermann. Bidermann asked Ryan to "[e]numerate specifically all of the things you contend the party serving these interrogatories did which should not have been done." Ryan responded by stating:
The aforesaid metal stairways were negligently and carelessly maintained, failed to have abrasive material; were extremely slippery; were exposed to the elements causing a danger of slipping; and were otherwise unsafe for use by the plaintiff.
During the hearing on the summary judgment motion Bidermann's attorney argued that "any work done by the landlord prior to our assuming the lease would not be under the indemnification ...