Castano v. Zee-Jay Realty Co.
Opinion of the Court
Ordered that the appeal by the defendant Joel Berger from the order dated March 23, 2007 is dismissed as abandoned (see 22 NYCRR 670.8 [e]); and it is further,
Ordered that the appeal by the defendant Joel Berger from the order dated August 30, 2007 is dismissed as abandoned (see 22 NYCRR 670.8 [e]), and on the ground that he is not aggrieved by the order (see CPLR 5511); and it is further,
Ordered that the order dated March 23, 2007 is reversed insofar as appealed from by the defendants Zee-Jay Realty Co. and Zvi Berger, on the law, and that branch of the motion insofar as asserted by the defendants Zee-Jay Realty Co. and Zvi Berger which was for summary judgment on their cross claim against the defendant Waroge Met, Ltd., and Sizzler #489 for contractual indemnification is granted; and it is further,
Ordered that the order dated August 30, 2007 is reversed, on the law, and the motion of the defendants Waroge Met, Ltd., and Sizzler #489 to apportion 100% of the fault to the defendants Zee-Jay Realty Co. and Zvi Berger is denied as academic; and it is further,
Ordered that one bill of costs is awarded to the defendants Zee-Jay Realty Co. and Zvi Berger.
The plaintiff allegedly was injured when she tripped and fell on a dangerous and defective public sidewalk. She commenced this action to recover damages for personal injuries against,
General Obligations Law § 5-321 provides that an agreement to exempt a lessor from its own negligence is void and unenforceable. However, where, as here, the liability is to a third party, General Obligations Law § 5-321 does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm’s length between two sophisticated parties when coupled with an insurance procurement requirement (see Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 417 [2006]; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153 [1977]; Schumacher v Lutheran Community Servs., 177 AD2d 568 [1991]). In such circumstances, the landlord is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance, and the courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public (see Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 417 [2006]; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153 [1977]; Schumacher v Lutheran Community Servs., 177 AD2d 568 [1991]). Here, such an arrangement afforded the plaintiff adequate recourse for the injuries she sustained. Additionally, the tenant’s insurer—not the tenant itself—will bear ultimate responsibility for the indemnification payment, which is precisely the result contemplated by the parties when they entered into the lease. Thus, the Supreme Court erred in holding the indemnification provision of the lease unenforceable pursuant to General Obligations Law § 5-321.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.