New York Court of Appeals, 1985

Austro v. Niagara Mohawk Power Corp.

New York Court of Appeals · Decided October 10, 1985

66 N.Y.2d 674; 487 N.E.2d 267; 496 N.Y.S.2d 410; 1985 N.Y. LEXIS 17232

Cases that cite this one

36 later published cases cite this decision. The 24 that cite it most often are listed here.

St. Paul Fire & Marine Insurance v. Universal Builders Supply (2d Cir. 2005)
Residential Funding Co. v. HSBC Mortgage Corp. (USA) (In re Residential Capital, LLC) (United States Bankruptcy Court, S.D. New York 2015)
Pfizer, Inc. v. Stryker Corp. (District Court, S.D. New York 2004)
In re Olympia Brewing Co. Securities Litigation (District Court, N.D. Illinois 1987)
Indian Harbor Insurance v. Dorit Baxter Skin Care, Inc. (District Court, S.D. New York 2006)
Mastr Asset Backed Securities Trust 2006-He3 ex rel. U.S. Bank National Ass'n v. WMC Mortgage, LLC (D. Minn. 2013)
Goodman v. Port Authority (District Court, S.D. New York 2012)
CSX Transportation, Inc. v. Massachusetts Bay Transportation Authority (District Court, D. Massachusetts 2010)
One Beacon Insurance v. Orange & Rockland Utilities, Inc. (District Court, S.D. New York 2005)
Bluestein & Sander, Martin J. Bluestein and Ronni Sander v. Chicago Insurance Company (2d Cir. 2002)
Gibbs-Alfano v. Burton (2d Cir. 2002)
Gibbs-Alfano v. Burton (2d Cir. 2002)
Calvin Klein Ltd. v. Trylon Trucking Corp. (2d Cir. 1989)
Honig v. Riot Blockchain, Inc. (District Court, S.D. New York 2020)
PNC Bank, National Association v. Dana Transport, Inc. (District Court, S.D. New York 2022)
Matter of Power v. Olympic Regional Dev. Auth. (Appellate Division of the Supreme Court of New York 2021)
NXIVM CORPORATION v. ROSS INSTITUTE (District Court, D. New Jersey 2019)
Marolf v. Rapid Response Monitoring Servs. Inc. (Appellate Division of the Supreme Court of New York 2018)
J.P. Morgan Securities Inc. v. Vigilant Insurance (N.Y. 2013)
Abacus Fed. Sav. v. Adt SEC. (N.Y. 2012)
ALDRIDGE, M.D., JANERIO v. BRODMAN, M.D., RICHARD F. (Appellate Division of the Supreme Court of New York 2012)
Abacus Federal Savings Bank v. ADT Security Services, Inc. (N.Y. 2012)
Higgins v. New York City Housing Authority (Civil Court of the City of New York 1999)
Hertz Corp. v. Government Employees Insurance (Appellate Division of the Supreme Court of New York 1998)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and judgment granted to Niagara Mohawk Power Co. (NiMo) on its third-party complaint against third-party defendants Weber Construction Co., Inc., and Kenneth Begin.

The Appellate Division affirmed the dismissal, following trial, of NiMo’s third-party complaint insofar as it demanded indemnification from Weber for liability arising out of NiMo’s gross negligence. The demand was based on an agreement by Weber to indemnify NiMo for any liability caused by the latter’s negligence resulting, in whole or in part, in bodily injury arising out of work performed by Weber under a construction contract. The Appellate Division relied on this court’s pronouncements, in Gross v Sweet (49 NY2d 102) and Kalisch-Jarcho, Inc. v City of New York (58 NY2d 377), that exculpatory agreements will not be read to exempt a willful or grossly negligent party from liability to an injured person. The Appellate Division, however, failed to distinguish between the exculpatory clauses involved in those cases, which typically deprive a contracting party of the right to recover for damages suffered as the result of the exonerated party’s tortious act, and indemnity contracts that simply shift the source of compensation without restricting the injured party’s ability to recover. Indemnification agreements are unenforceable as violative of public policy only to the extent that they purport to indemnify a party for damages flowing from the intentional causation of injury (Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392, 400). Because there is no allegation of intentional harm in this case, NiMo should have been granted *677judgment against Weber and Begin for the full amount of its liability to plaintiff Austro. In view of our holding, we need not decide whether the evidence was legally sufficient to support the jury’s finding of gross negligence against NiMo.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Titone concur; Judge Jasen taking no part.

Order reversed, with costs, and judgment granted to Niagara Mohawk Power Corporation in accordance with the memorandum herein.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.