burden shifts to the opposing party "to produce evidentiary proof in admissible form sufficient to
establish the existence of material issues of fact" (id.).
Indemnification clauses "must be strictly construed to avoid reading into it a duty which the
parties did not intend to be assumed" (Hooper Assoc., Ltd. v AGS Computers, Inc., 74
NY2d 487, 491 [1989]). "The promise should not be found unless it can be clearly
implied from the [*5]language and purpose of the entire
agreement and the surrounding facts and circumstances" (id. at 491-492). The intent to
indemnify and the scope of the indemnification must be clear and unmistakable (id.; see also Fresh Del Monte Produce N.V. v
Eastbrook Caribe A.V.V., 40 AD3d 415, 418 [1st Dept 2007]). If it is not, summary
judgment in favor of the party seeking indemnification must be denied (see Gotham Partners, L.P. v High Riv. Ltd.
Partnership, 76 AD3d 203, 204 [1st Dept 2010], lv denied 17 NY3d 713
[2011]). The strict standard for interpreting indemnification clauses set forth in Hooper
requires more than a mere rational interpretation (id. at 207) — the intent and
scope of indemnification must be unmistakably clear (id. at 207-208).
Landlord argues that the federal action "based upon [Tenant's] failure to comply with the
ADA and other laws" constituted a "breach of [Tenant's] obligation under [paragraph] 6 of the
Lease" to "conduct its operations at the Building in compliance with applicable laws," and
triggered Tenant's "obligation under [paragraph] 8 of the Lease to indemnify" Landlord for costs
incurred as a result of any breach by Tenant of the lease (see Landlord's memorandum of
law at 18-19). In addition, Landlord asserts that paragraph 9 "creates a separate and independent