Wagner v. Ploch , 925 N.Y.S.2d 273 ( 2011 )

Carni, J.,

(concurring). Although I concur in the result reached by my colleagues, I would affirm for a different reason. While I agree that the indemnification clause in the lease in question is unenforceable under General Obligations Law § 5-321, I cannot agree with my colleagues that it is unenforceable based on the clause requiring third-party defendant to indemnify defendant for “any and all liability . . . arising from injury . . . to person or property . . ., occasioned wholly or in part by an act . . . of [third-party defendant or its employees].” Contrary to the conclusion of my colleagues, that clause merely partially, rather than entirely, shifts the responsibility for damages to third-party defendant. Indeed, by its express language, the clause in question does not “indemnify the promisee[, i.e., defendant,] for losses attributable to the promisee’s own negligence and therefore do[es] not run afoul of the statute” (Ostuni v Town of Inlet, 64 AD3d 854, 855 [2009]; see Brooks v Judlau Contr., Inc., 11 NY3d 204, 207-211 [2008]). Nevertheless, I concur with the majority in the result based on the further language of the indemnification clause in question, which requires third-party defendant to indemnify defendant “also for any matter or thing growing out of the occupation of the demised premises or of the streets, sidewalks or vaults adjacent thereto.” That broad indemnification language shifts the entire responsibility for damages to third-party defendant regardless of defendant’s own negligence, rendering the entire clause “void as against public policy and wholly unenforceable” (General Obligations Law § 5-321; see Mendieta v 333 Fifth Ave. Assn., 65 AD3d 1097, 1100-1101 [2009]; Rego v 55 Leone Lane, LLC, 56 AD3d 748, 749-750 [2008]). Finally, I note my agreement with my colleagues that the insurance rider to the lease is insufficient to circumvent General Obligations Law § 5-321. Present — Scudder, P.J., Centra, Garni, Sconiers and Green, JJ.