been or will be reimbursed by insurance, it is not entitled to indemnification. Additionally, there
is no showing that Landlord made a written request that Tenant, at its expense, resist or defend
the ADA action.
Further, Landlord has not shown that Tenant breached paragraph 6 of the lease. There is no
showing that any government body has imposed any violation, order, or duty upon Owner or
Tenant with respect to the demised premises, or that Tenant has failed to comply with any law,
order or regulation imposed by such body. Nor is there any showing that Landlord is entitled to
[*6]indemnification of expenses incurred in the ADA action
pursuant to paragraph 19 of the lease. Paragraph 19 requires a finding of a default by Tenant, and
there has been no such finding with respect to the ADA action.
Landlord's reliance on Grunberg 77 LLC v B.R. Guest Parent Holdings, LLC (2018
WL 5791969, 2018 US Dist LEXIS 189091 [SD NY, Nov. 5, 2018, 17 Civ 5627 (RWS)]) is
misplaced. Grunberg involves a motion to dismiss for failure to state a claim, which is a
different standard of review than a motion for summary judgment. The court in Grunberg
merely held that the plaintiff pleaded a viable claim for reimbursement of attorneys' fees incurred
in connection with a federal ADA action and a related state action; Grunberg, unlike this
case, did not involve a motion for summary judgment, and did not decide the merits of the claim.
Moreover, Grunberg is a federal decision not binding on this court. Accordingly, it is
inapplicable.
Equally unavailing is Landlord's reliance on K.L.M.N.I., Inc. v 483 Broadway Realty Corp. (117 AD3d 654, 655
[1st Dept 2014]). The lease provisions that the First Department relied on in granting summary