Munoz v Hilton Hotels Corp.

Munoz v Hilton Hotels Corp. 2011 NY Slip Op 07904 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Sweeny, J.P., Moskowitz, DeGrasse, Freedman, Richter, JJ.
4200 110826/07 116174/07 590086/08 590617/08 590618/09 590690/09 590847/09

[*1]Victor Munoz, et al., Plaintiffs,

v

Hilton Hotels Corporation, et al., Defendants. FC 42 Hotel LLC, Third-Party Plaintiff, Sunstone Hotel Properties, Inc., doing business as Hilton Times Square, Third-Party Defendant. [And A Fourth-Party Action] Sunstone 42nd Street, LLC, et al., Fifth-Party Plaintiffs-Respondents, Sunstone Hotel Properties, Inc., Fifth-Party Defendant-Appellant, First New York Partners Management, LLC, et al., Fifth-Party Defendants. [And Other Actions]




Cozen O'Connor, New York (John J. McDonough of counsel),
for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (Harry
Steinberg of counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 27, 2010, which, to the extent appealed from as limited by the briefs, denied appellant Sunstone Hotel Properties, Inc.'s (SHP) cross motion for summary judgment on its fifth-party claim for contractual indemnification against respondent Sunstone 42nd Street Lessee, Inc., unanimously [*2]affirmed, without costs.

Under controlling Maryland precedent (Mass Tr. Admin. v CSX Transp., Inc., 349 Md 299, 309-310, 708 A2d 298, 303-304 [1998]), the contract's indemnification provision unequivocally provides that respondent hotel owner is to indemnify appellant hotel manager for all acts arising from appellant's performance of the contract. However, Maryland law also provides that in construing a contract relating to the construction, repair, or maintenance of a building or structure, an indemnification provision is void and unenforceable as against public policy if it would operate to indemnify a party for liability for damages proximately caused by that party's sole negligence (Md Code Ann, Cts & Jud Proc § 5-401(a); Heat & Power Corp. v Air Prods. & Chems., Inc., 320 Md 584, 592-593, 578 A2d 1202, 1206 [1990]). Since we note, upon review of the record, that a triable issue of fact remains as to
whether appellant's sole negligence was the proximate cause of plaintiff's injuries, denial of summary judgment was proper (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011

CLERK