Opinion
1961.
Decided December 9, 2003.
Judgment, Supreme Court, New York County (Paula Omansky, J.), entered March 19, 2002, which, insofar as appealed from as limited by the briefs, dismissed the third-party complaint of defendant/third-party plaintiff AJ Contracting Company, Inc. (AJ) as against third-party defendant Forest Datacom Services Inc. (Forest), unanimously reversed, on the law, without costs, and AJ granted contractual indemnity against Forest. The Clerk is directed to enter an amended judgment in accordance herewith.
Richard Bakalor, for Plaintiff.
James L. Fischer, for Defendant-Respondent.
Before: Saxe, J.P., Rosenberger, Friedman, Marlow, JJ.
AJ, the general contractor for the project on which plaintiff was working when he was injured, is entitled, under Article 9.3 of the General Conditions of the subcontract, to be indemnified by Forest, the subcontractor that employed plaintiff, for AJ's stipulated settlement payment to plaintiff. Article 9.3 obligates Forest to indemnify AJ against all loss "arising out of, or in any way relating to the performance of this Contract, and [Forest] agrees to provide and maintain insurance thereon." Forest's argument that the matter is governed by a 1983 Blanket Purchase Order Agreement, containing a more limited indemnity provision, is unavailing, as the record does not contain sufficient evidence to support the conclusion that the Blanket Purchase Order Agreement, which predates the subcontract in question by 13 years, was still in force at the relevant time. We also reject Forest's argument that plaintiff's accident was not contract-related. Finally, General Obligations Law § 5-322.1 is not an obstacle to enforcement of the subject indemnity agreement, both because the jury found that AJ's negligence was not a substantial factor in the causation of the accident, and because enforcement of an indemnity agreement coupled with the obligation to procure liability insurance does not offend the statute ( see Santamaria v. 1125 Park Ave. Corp., 238 A.D.2d 259, 260, and authorities there cited).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.