judgment in favor of the landlord in K.L.M.N.I. are not similar to the provisions here
(see 117 AD3d 654). Moreover, the First Department did not disturb Supreme Court's
finding that paragraph 19 of the lease, which is similar to paragraph 19 here, does not provide "a
sufficient ground for awarding judgment as a matter of law" on counterclaims for attorney's fees
incurred in defending a federal ADA action, where the tenant "has never been found in default of
the lease either by the Federal court or [state] court" (Klmni, Inc. v 483 Broadway Realty
Corp., 2013 NY Slip Op 31699[U], *4 [Sup Ct, NY County 2013], affd as mod sub nom.
K.L.M.N.I., Inc. v 483 Broadway Realty, 117 AD3d 654 [1st Dept 2014]; Landlord's exhibit
W [Supreme Court decision and order]).
The court also finds that Landlord has not established that it is entitled to indemnification
pursuant to paragraph 9 of the assignment agreement. First, Landlord's first counterclaim did not
seek indemnification under paragraph 9 of the assignment agreement. Nor has it sought to amend
its answer to assert this paragraph in its first counterclaim. Moreover, the court finds the terms of
the assignment agreement to be ambiguous. It is not clear whether paragraph 9 is a separate and
independent indemnity provision from the one asserted in the lease, thereby enlarging Tenant's
indemnity obligation, as Landlord argues, or just limited to events occurring under the term of
the original lease and first amendment, as Tenant argues. The court cannot glean the parties'
intent from the four corners of these documents.
2. Landlord is not Entitled to Summary Judgment on its Second Counterclaim
Summary judgment is denied as to the second counterclaim, as the Civil Court does not have