Opinion
December 11, 1989
Appeal from the Supreme Court, Queens County (Belfi, J., Lerner, J.).
Ordered that the appeal from the order dated January 7, 1988, is dismissed, as withdrawn; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the defendant-respondent is awarded one bill of costs payable by the appellant.
By contract dated July 25, 1983, between New York City Public Development Corp. (hereinafter PDC), as agent for New York City, and the appellant, the latter agreed to renovate and expand Astoria Studios, owned by the city. By a rider to the contract, the appellant agreed, "[t]o the fullest extent permitted by law", to indemnify and hold harmless, among others not including the PDC or the city, the "Construction Manager", in this case the defendant City Construction Management, Inc. (hereinafter CCM), against all claims and damages for bodily injury occurring in connection with or resulting from work on the project which might be imposed upon, incurred by or asserted against CCM "unless caused solely by [CCM']s negligence, gross negligence, recklessness or intentional infliction of harm".
The plaintiff Thomas Kilfeather (hereinafter the plaintiff), an employee of third-party defendant Astoria Studios, Inc., was injured while working at the construction site and sued, among others, the appellant and CCM on account of his injuries. Upon determining that the appellant and CCM were both guilty of negligence, the jury apportioned fault between these two defendants in the respective amounts of 70% and 30%. The Supreme Court then granted CCM's motion for judgment over against the appellant pursuant to the indemnity provision of the appellant's contract with PDC as agent for the city, thereby rejecting the appellant's argument that that contract provision was void because it was in violation of General Obligations Law § 5-322.1 Gen. Oblig..
General Obligations Law § 5-322.1 prohibits and renders unenforceable any promise to hold harmless and indemnify a promisee which is a construction contractor or a landowner against its own negligence (cf., Quevedo v City of New York, 56 N.Y.2d 150; DeFilippis Crane Serv. v Joannco Contr. Corp., 132 A.D.2d 517; see also, Quain v Buzzetta Constr. Corp., 69 N.Y.2d 376). The language of the statute makes clear, however, that it was not intended to "preclude a promisee [from] requiring indemnification for damages * * * caused by or resulting from the negligence of a party other than the promisee" (General Obligations Law § 5-322.1) and there is nothing which suggests that indemnification for the negligence of another party is prohibited because the indemnification runs to that party rather than to the promisee (cf., Magrath v Migliore Constr. Co., 139 A.D.2d 893, 894). The appellant is therefore required to honor its contractual obligation to the extent that the contract requires indemnification caused by or resulting from the negligence of a party other than the city or its agents, provided that the actions of the offending party were not the sole cause of the damage (see, DeFilippis Crane Serv. v Joannco Contr. Corp., supra; cf., Quevedo v City of New York, supra). Because CCM was not the promisee and was only partially at fault for the plaintiff's injuries, judgment over against the appellant pursuant to the indemnification provision of the appellant's contract with PDC as agent for the city was proper. Thompson, J.P., Eiber, Sullivan and Harwood, JJ., concur.