Opinion
No. 16092 Index No. 150208/14 Case Nos. 2021-04510 2022-00039
06-07-2022
Thomas Sande et al., Plaintiffs-Respondents, v. Trinity Centre LLC et al., Defendants-Respondents. Trinity Centre LLC et al., Plaintiffs-Respondents, v. A.C. Electric of New York, Inc., Defendant-Appellant.
The Law Offices of Kevin P. Westerman, Elmsford (Richard W. Ashnault of counsel), for appellant. Law Office of Eric D. Feldman, New York (Evy Kazansky of counsel), for respondents.
The Law Offices of Kevin P. Westerman, Elmsford (Richard W. Ashnault of counsel), for appellant.
Law Office of Eric D. Feldman, New York (Evy Kazansky of counsel), for respondents.
Before: Gische, J.P., Webber, Singh, González, Pitt, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 4, 2021, which, to the extent appealed from, denied third-party defendant A.C. Electric of New York, Inc.'s motion for summary judgment dismissing defendants/third-party plaintiffs Tricon Construction LLC and Jos A. Bank Clothiers, Inc.'s contractual indemnification claim against it, unanimously affirmed, without costs.
General Obligations Law § 5-322.1 permits "a partially negligent general contractor to seek contractual indemnification from its subcontractor so long as the indemnification provision does not purport to indemnify the general contractor for its own negligence" (Brooks v Judlau Contr., Inc., 11 N.Y.3d 204, 207 [2008]). Contrary to defendants' contention that nothing in the indemnification clause in the subcontract between Tricon and A.C. Electric "purports to shift responsibility for the conduct of the defendants to the subcontractor," the clause broadly required indemnification for claims or losses related to A.C. Electric's work without any savings language that may be construed as contemplating indemnification only for damages not caused by Jos A. Bank's or Tricon's negligence (see id. at 208-209). Nevertheless, where, as here, an indemnification provision calls for full indemnification without any such savings language, the provision is still valid and enforceable if the indemnitee is not negligent (Higgins v TST 375 Hudson, L.L.C., 179 A.D.3d 508, 511 [1st Dept 2020]; Auriemma v Biltmore Theatre, LLC, 82 A.D.3d 1, 12 [1st Dept 2011]). Because there has been no finding as to whether or not Jos A. Bank or Tricon was negligent, A.C. Electric is not entitled to dismissal of their contractual indemnification claim (Higgins, 179 A.D.3d at 511; Auriemma, 82 A.D.3d at 12). We decline defendants' request to search the record and grant Jos A. Bank summary judgment on the contractual indemnification claim, and note that defendant Trinity Centre LLC's contractual indemnification claim has been dismissed.