Walsh v Celwyn Co., Inc.

[*1] Walsh v Celwyn Co., Inc. 2009 NY Slip Op 50013(U) [22 Misc 3d 127(A)] Decided on January 7, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 7, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Heitler, J.
570715/06

Donnasue Walsh, Plaintiff,

against

Celwyn Company, Inc., Defendant. Celwyn Company, Inc., Third-Party Plaintiff- Respondent, Goodwill Industries of Greater NY and Northern NJ, Inc., Third-Party Defendant-Appellant. Celwyn Company, Inc. Second Third-Party Plaintiff, American Economy Insurance Company, Second Third-Party Defendant.

Third-party defendant Goodwill Industries of Greater NY and Northern NJ, Inc. appeals from (1) an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated January 2, 2007, which upon renewal, granted third-party plaintiff Celwyn Co., Inc. summary judgment on its claim for contractual indemnification and (2) an order (same court and Judge), dated July 9, 2007, which denied third-party defendant's motion for leave to reargue the prior January 2, 2007 order.

Per Curiam.

Order (Mitchell J. Danziger, J.) dated January 2, 2007, affirmed, with $10 costs. [*2]Appeal from order (Mitchell J. Danziger, J.), dated July 9, 2007, dismissed, without costs, as nonappealable.

Civil Court correctly determined that third-party plaintiff lessor was entitled to summary judgment for contractual indemnification as against the third-party defendant lessee under the provisions of the parties' commercial lease agreement. The lease terms reflect an "unmistakable intent" to indemnify (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 417 [2006]). Given that the parties are sophisticated commercial entities and that third-party defendant was required under the lease to procure insurance, the lease indemnification provision does not violate General Obligations Law § 5-321 (see Jenrette v Green Acres Mall, 52 AD3d 386 [2008]). "Where, as here, a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit indemnity" (Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d at 419). The clear intent of the parties was to "allocat[e] the risk of liability to [a] third part[y] [insurer]" (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 161 [1977]).

We have considered appellant's remaining arguments and find them lacking in merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 07, 2009