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Mastrogiovanni v. Vornado, Inc.

A-1672-97T1 (N.J. Super. App. Div. 1998) (Unpublished)

LEASES; LIABILITY—Where a tenant failed in its responsibility to maintain a part of the property even where that portion of the property was not included within the definition of the demised premises, it was held responsible for injuries arising from its failure and an indemnification provision in favor of the landlord was given effect.

After maneuvering his truck into a loading bay, a tenant’s employee twisted his ankle while existing from the vehicle. He claimed that his foot went into a crack between the macadam of the exterior lot and the flooring of the adjacent truck bay. The tenant occupied a portion of a warehouse building, but its demised premises did not include the parking lot. While the landlord was responsible for all repairs to the building, the tenant was responsible for maintaining and repairing any “loading platform, truck dock, or truck maneuvering space” which it used or had the exclusive right to use. Furthermore, the lease contained an indemnification clause in which the tenant agreed to indemnify and hold the landlord harmless from all claims arising from the “possession, use, occupation, management, repair, maintenance or control” of the demised premises, or arising “from any act or omission of [the] tenant… .” The lower court found that the tenant was liable for its employee’s injury and that, under the lease’s indemnification provision, the tenant’s insurance company was required to defend the landlord. The Appellate Division agreed.

Where an indemnity clause is ambiguous, it is strictly construed against the indemnitee, but here, neither the lower court nor the Appellate Division was concerned with whether the indemnification agreement purported to indemnify the indemnitee for its own negligent acts. Both Courts agreed that the tenant had the duty to maintain and repair the area in which its employee was injured. While a landlord is responsible to use reasonable care with regard to portions of the leased premises which are not demised and remain in the landlord’s control, absent an agreement to make repairs, the landlord is under no obligation to do so. It didn’t matter whether or not the “truck maneuvering space” was a part of the demised premises because the lease plainly required the tenant to be responsible for its repair and maintenance. Consequently, the landlord was entitled to judgment as a matter of law.


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