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Walsh v. Celwyn Co., Inc.

Appellate Term of the Supreme Court of New York, First Department
Jan 7, 2009
2009 N.Y. Slip Op. 50013 (N.Y. Sup. Ct. 2009)

Opinion

570715/06.

Decided on January 7, 2009.

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.

Order (Mitchell J. Danziger, J.) dated January 2, 2007, affirmed, with $10 costs.

Appeal from order (Mitchell J. Danziger, J.), dated July 9, 2007, dismissed, without costs, as nonappealable.

PRESENT: McKeon, P.J., Heitler, J.


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). 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). "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).

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

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


Summaries of

Walsh v. Celwyn Co., Inc.

Appellate Term of the Supreme Court of New York, First Department
Jan 7, 2009
2009 N.Y. Slip Op. 50013 (N.Y. Sup. Ct. 2009)
Case details for

Walsh v. Celwyn Co., Inc.

Case Details

Full title:DONNASUE WALSH, Plaintiff, v. CELWYN COMPANY, INC., Defendant. Celwyn…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Jan 7, 2009

Citations

2009 N.Y. Slip Op. 50013 (N.Y. Sup. Ct. 2009)
880 N.Y.S.2d 228