Opinion
September 30, 1975
Judgment, Supreme Court, New York County, entered June 17, 1975, dismissing McCrory Corporation's third-party complaint for contractual indemnification against third-party defendant Mrs. Clusta Barber, unanimously affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Kelvin Lewis, an employee of Mrs. Clusta Barber, a concessionaire at McCrory's department store located on Fulton Street in Brooklyn, was killed by a descending freight elevator at the premises while effecting a delivery of merchandise for the concessionaire. In the subsequent wrongful death action, judgment was rendered against McCrory Corporation, the tenant in possession, and Gotham Elevator Repair Co., Inc., the elevator maintenance company. McCrory's third-party complaint against the concessionaire is premised on an indemnification agreement wherein the latter agreed, inter alia, to fully indemnify the former against all claims for any damage to any person "arising, directly or indirectly, by reason of the operation or maintenance of said Concession". The trial court properly dismissed this third-party complaint. Patently, the indemnification agreement does not cover claims arising from the negligence of McCrory itself in the maintenance of the freight elevator in its store. The accident resulting in the death of Kelvin Lewis was not caused directly or indirectly by reason of the operation or maintenance of the concession, but was attributable to the operation and maintenance of the elevator. The indemnification agreement may not be construed as one requiring Mrs. Barber to indemnify McCrory for the use of a defective elevator which was not part of her concession and which was under the exclusive control of McCrory.
Concur — Kupferman, J.P., Lupiano, Tilzer, Lane and Nunez, JJ.