whether Tenant breached the lease by failing to indemnify Landlord for costs incurred in the
ADA action, given the allegations in the federal action and the terms of the lease, as noted
below.
Second, Tenant argues that, even if it breached the lease by failing to indemnify Landlord for
costs incurred in the ADA action, the ADA action arose solely from Landlord's breach of its
obligation to ensure that the exterior step outside the premises complied with the ADA and
similar state and city laws, and that Tenant has no duty to indemnify Landlord against a claim
that arises from Landlord's own conduct. The court finds this argument to be unavailing, as the
federal action alleges more than just the failure to maintain the exterior step. Rather, it also
alleges failures inside the premises, such as lack of appropriate signage and accessible
countertops, and it is not clear from the record that Tenant had no control or responsibility for
these alleged breaches. Mr. Shore avers, in his affidavit in support of Landlord's motion, that
after Tenant took possession of the premises, it made improvements to the store, including the
installation of countertops and signage. Under paragraph 72 of the rider to the lease, Tenant was
required to "make all ordinary non-structural interior repairs, . . . and all repairs whether
structural or non-structural interior or exterior caused by Tenant" (Landlord's exhibit E).
Accordingly, it appears that Tenant is responsible for any violations of the ADA regarding the
lack of appropriate signage and accessible countertops. However, because there is no affidavit
from the plaintiff in the ADA action, nor any expert affidavit, it cannot be determined on this
record whether Tenant violated the ADA.