indemnification clause in New York

2026The relevant portion from the indemnification clause reads: “[GZA shall indemnify Owner] to the extent caused by the negligent act, error or omission or violation of law of [GZA] including, bodily injury, death, and personal injury […] or property damage.” As a general rule, contractual indemnification provisions are to be “strictly construed to avoid reading into it a duty which the parties did not intend to be assumed.” Hooper Associates, Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 491 [1989].

2025In Hooper, the Court of Appeals addressed a similar indemnification clause to that at issue here, whereby the defendant indemnified the plaintiff “from any and all” claims and damages, including attorneys’ fees, “arising out of breach of warranty claims, the performance of any service to be performed, the installation, operation and maintenance of the computer system, infringement of patents, copyrights or trademarks and the like.” Id.

1992Plaza Partners, 76 NY2d 172 [General Obligations Law § 5-322.1 does not bar enforcement of an indemnification clause in contract between general contractor and a subcontractor where there is no finding of negligence on the part of the general contractor].) Accordingly, upon remittitur from the Court of Appeals, the judgment of the Supreme Court, New York County (Shirley Fingerhood, J.), entered January 17, 1990, which, inter alia, granted a new trial upon the issue of damages unless plaintiffs stipulated to a reduction in the jury award, should be modified, on the law and facts, solely to the

1991Plaza, 76 NY2d 172 [General Obligations Law § 5-322.1 does not bar enforcement of an indemnification clause in contract between general contractor and a subcontractor where there is no finding of negligence on the part of the general contractor].) Accordingly, the judgment of the Supreme Court, New York County (Shirley Fingerhood, J.), entered January 17, 1990, which, inter alia, granted a new trial upon the issue of damages unless plaintiffs stipulated to a reduction in the jury award, should be modified, on the law and facts, solely to the extent of correcting such judgment to reflect that d

2013Broadway’s cross claim for contractual indemnification against Winoker should have been dismissed, given the plain language of the indemnification clause in their agreement (see generally Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 158-159 [1977]).

2013Broadway’s cross claim for contractual indemnification against Winoker should have been dismissed, given the plain language of the indemnification clause in their agreement (see generally Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 158-159 [1977]).

2022Contrary to 4 Star's argument that the indemnification clause in its contract with the Board violates General Obligations Law § 5-322.1, the clause is enforceable, because it requires 4 Star to indemnify the Board for claims "arising out of or resulting from performance of the Work . . . only to the extentcaused by the negligent acts or omissions of [4 Star], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable" ( see Brooks v Judlau Contr., Inc. , 11 NY3d 204 , 210 and n 4 [2008]).

2022Contrary to 4 Star's argument that the indemnification clause in its contract with the Board violates General Obligations Law § 5-322.1, the clause is enforceable, because it requires 4 Star to indemnify the Board for claims "arising out of or resulting from performance of the Work . . . only to the extentcaused by the negligent acts or omissions of [4 Star], a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable" ( see Brooks v Judlau Contr., Inc. , 11 NY3d 204 , 210 and n 4 [2008]).

2017If CAP Rents was found to be negligent at trial, the indemnification clause would become unenforceable under General Obligations Law § 5-322.1, since it would indemnify CAP Rents for its own negligence (Itri Brick, 89 NY2d at 794).

2004An indemnification clause that runs afoul of General Obligations Law § 5-322.1 (1) is enforceable in the event the indemni tee is found not negligent but nevertheless held vicariously liable to the plaintiff (see Itri, 89 NY2d at 795 n 5; Masciotta v Morse Diesel Intl., 303 AD2d 309, 312 [2003]).

2020Contrs., Inc. , 5 NY3d 427, 433 ; Martelle v City of New York , 31 AD3d at 400 ).

2012Contrs., Inc., 5 NY3d 427, 429-430 [2005], quoting Workers’ Compensation Law § 11), the causes of action for contractual indemnification and to recover damages for breach of contract for failure to procure insurance were based upon a promise found in the prime agreement between the subcontractor BTG, and the defendant general contractor Hunt Bovis/Lend Lease Alliance II, to which Gessin was not a signatory.

2024It is clear from the record that the plaintiff's injuries did arise out of the work being performed by Kenvil, and therefore the indemnification clause in the contract between Ocean and Kenvil is triggered {see Cresser v 345 Park Avenue, L.P., 193 AD3d 526 , 527 [1st Dept 2021]; Alarcon v UCAN White Plains Housing Development Fund Corp., 100 AD3d 431, 432 [1st Dept 2012]; Masciotta v Morse Diesel International, Inc., 303 AD2d 309 [1st Dept 2003]).

2004An indemnification clause that runs afoul of General Obligations Law § 5-322.1 (1) is enforceable in the event the indemni tee is found not negligent but nevertheless held vicariously liable to the plaintiff (see Itri, 89 NY2d at 795 n 5; Masciotta v Morse Diesel Intl., 303 AD2d 309, 312 [2003]).

2021PCL failed to demonstrate its prima face entitlement to judgment as a matter of law by establishing that the plaintiff's accident was not "caused in whole or in part by any negligent act or omission of [PCL]," such that the indemnification clause was not triggered ( see Mikelatos v Theofilaktidis , 105 AD3d 822, 824 ; Perales v First Columbia 1200 NSR, LLC , 88 AD3d 1213, 1214 ; see generally Brown v Two Exch.

2019The indemnification clause in the snow removal contract between McKinley and East Coast Services II provides, in relevant part, that East Coast Services II must indemnify Thompson Station and McKinley "from any suits, claims, damages, . . . losses and expenses of any nature whatsoever including but not limited to attorney's fees resulting from performance of the work, but only to the extent caused by the negligent acts or omissions of [East Coast Services II and Poley Paving] . . . regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereund

2023Feiden, Inc ., 8 NY3d 265, 274 [2007]).

2023Feiden, Inc ., 8 NY3d 265, 274 [2007]).

2021There was no indemnification agreement in existence at the time of the accident and no proof that the indemnification clause in the subsequently executed contract was to be afforded retroactive effect (s ee Temmel v 1515 Broadway Assoc., L.P. , 18 AD3d 364, 365 [1st Dept 2005]; Perez Juarez v Rye Depot Plaza, LLC , 140 AD3d 464 [1st Dept 2016]).

2021There was no indemnification agreement in existence at the time of the accident and no proof that the indemnification clause in the subsequently executed contract was to be afforded retroactive effect (s ee Temmel v 1515 Broadway Assoc., L.P. , 18 AD3d 364, 365 [1st Dept 2005]; Perez Juarez v Rye Depot Plaza, LLC , 140 AD3d 464 [1st Dept 2016]).

2001The primary issue before us in Morris , of course, was whether a rental company, by having its renters sign an indemnification clause, may “legally disclaim that portion of its liability which exceeds *74 the amount for which motor vehicle owners are required to be insured under sections 388 and 370 of the Vehicle and Traffic Law” ( 84 NY2d, at 28 [emphasis added]).

2000Because ELRAC seeks indemnification for sums it may become obligated to pay to the plaintiff, the policy underlying Vehicle and Traffic Law § 388 is not undercut by enforcement of the indemnification clause (see, Morris v Snappy Car Rental, supra, at 27; Cuthbert v Pederson, supra).

2003The motion court also correctly held that the indemnification clause in the subcontract does not purport to indemnify the general contractor for its own negligence and otherwise warrants judgment in favor of defendants on their third-party claims against the employer for contractual indemnification (see Dutton v Pankow Bldrs., 296 AD2d 321 [2002]).

2003In Dutton (supra), the indemnification clause provided that: “to the fullest extent permitted by applicable law, the subcontractor will indemnify the general contractor for all liabilities arising out of personal injuries sustained in connection with the subcontractor’s work regardless of whether [the general contractor is] partially negligent * * * excluding] only liability created by the [general contractor’s] sole and exclusive negligence.” (Internal quotation marks omitted.) The Court focused on the phrases limiting the subcontractor’s obligation to that permitted by law and excluding liab

2025As a result, the accident was not "caused by the negligent acts or omissions of [Commercial], such that the indemnification clause was not triggered" ( Mikelatos v Theofilaktidis , 105 AD3d 822, 824 [internal quotation marks omitted]; see Tolpa v One Astoria Sq., LLC , 125 AD3d 755, 757 ).

2021PCL failed to demonstrate its prima face entitlement to judgment as a matter of law by establishing that the plaintiff's accident was not "caused in whole or in part by any negligent act or omission of [PCL]," such that the indemnification clause was not triggered ( see Mikelatos v Theofilaktidis , 105 AD3d 822, 824 ; Perales v First Columbia 1200 NSR, LLC , 88 AD3d 1213, 1214 ; see generally Brown v Two Exch.

2009The Supreme Court also should have granted that branch of S & S’s motion which was for summary judgment dismissing the contractual indemnification claim, since the agreement between Bridgeport and S & S contained no express indemnification provisions, and an indemnification clause could not be implied from the language of that agreement (see generally Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989]; Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987]; Canela v TLH 140 Perry St., LLC, 47 AD3d 743, 744 [2008]).

1994The court properly granted summary judgment to the general contractor of the construction project, David Christa Construction, Inc. (Christa), on Christa’s contractual and common-law indemnification causes of action in light of the indemnification and defense clauses in Christa’s contract with Triangle (see, Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 ), and the complete absence of control or supervision by Christa of the fabrication, delivery or unloading of the structural steel (see, Kelly v Diesel Constr.

2021Minimally, there are issues of fact as to the nature of the area in which plaintiff fell and, thus, whether her fall triggered the applicability of the indemnification clause in the lease ( see Titus v Van Houter , 182 AD3d 755, 756-757 [2020]; Reutzel v Hunter Yes, Inc. , 135 AD3d at 1126-1127 ; compare Luby v Rotterdam Sq., L.P. , 47 AD3d 1053, 1055-1056 [2008]).

2015The indemnification clause did not apply to the circumstances related to the alleged injury (see Agricola v City of New York, 52 AD3d 627, 629 [2008]; Luby v Rotterdam Sq., L.P., 47 AD3d 1053, 1055 [2008]).

2017An indemnification clause in a written contract executed after a plaintiff’s accident may “nevertheless be applied retroactively where evidence establishes as a matter of law that the agreement pertaining to the contractor’s work ‘was made “as of” [a pre-accident date], and that the parties intended that it apply as of that date’ ” (Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361, 362 [2004], quoting Stabile v Viener, 291 AD2d 395 [2002]).

2010Instead, it relies upon the case of Stabile v Viener ( 291 AD2d 395, 395-396 [2002]), in which this Court held that a construction contract containing an indemnification clause was enforceable even though the contract was executed after the accident because the parties intended that it apply “as of’ a date prior to the injury.

2013Co. v Straubinger, 19 AD2d 26, 28-29 [4th Dept 1963]; Blair v County of Albany, 127 AD2d 950, 951 [3d Dept 1987]).

2011Even assuming, arguendo, that defendant ultimately is held to be free from negligence, which would render the indemnification clause enforceable, we conclude that third-party defendant failed to meet its initial burden on the motion by establishing that the indemnification clause was not broad enough to encompass the attorney’s fees and disbursements incurred by defendant (cf. Boshnakov v Board of Educ. of Town of Eden, 302 AD2d 857, 858-859 [2003]; see generally Boyd v Bethlehem Steel Corp., 247 AD2d 864 [1998], lv dismissed in part and denied in part 92 NY2d 885 [1998]; Blair v County of Alb

2019"The indemnification clause at issue provides for coverage of extremely broad claims, and is consistent with other clauses that have been held to provide for indemnification . . . for intra-party disputes" ( Square Mile Structured Debt [One], LLC v Swig , 110 AD3d 449, 449 [1st Dept 2013]; see Crossroads ABL LLC v Canaras Capital Mgt., LLC , 105 AD3d 645 , 646 [1st Dept 2013]).

2019On the contrary, the provision requires defendant to "indemnify and save harmless and defend " plaintiff (emphasis added), revealing that the parties contemplated legal costs arising from defendant's errors, omissions or negligence as part of the provision's scope. [FN1] Accordingly, this aspect of plaintiff's indemnification claim should not have been dismissed ( see Matter of 2-4 Kieffer Lane LLC v County of Ulster , 172 AD3d at 1601; Crossroads ABL LLC v Canaras Capital Mgt., LLC , 105 AD3d at 646).

2010The indemnification clause pertaining to Brookhaven provides, inter alia, that DF Stone would indemnify Brookhaven “against any and all claims, suits or liability which might arise in connection with this agreement [and] from any and all claims, suits, or liabilities that might arise as a result of transporting, handling, depositing, staging and storing of the Process Residue transported.” None of the statutory exceptions to the general rule that, where one party agrees to indemnify another against “any and all claims,” it is agreeing to indemnify the other party even where that party has been

2007“When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” (Hooper Assoc., 74 NY2d at 491 [citations omitted]; see also Levine v Shell Oil Co., 28 NY2d 205, 211 [1971] [“a rule has evolved under which courts have carefully scrutinized these agreements for an expression of an intent to indemnify and for some indication of the scope of that indemnification”]).

2025In the Bellevue case, for example, a flooring subcontractor asserted an indemnification claim against a tile manufacturer based on a theory of breach of implied warranty ( Bellevue South Assoc. , 78 NY2d at 282 ).

2025There, the Court of Appeals concluded that an implied warranty may provide the requisite basis for an indemnification claim and that the flooring subcontractor could potentially recover on its implied [*4]warranty indemnity claim if the evidence showed the existence and breach of the warranty and that the breach was the proximate cause of plaintiff's damages ( see id. ; see also Arell's Fine Jewelers v. Honeywell, Inc. , 170 AD2d 1013, 1015 [4th Dept 1991]).

2008We interpret the indemnification claim in the first cause of action as one for common-law indemnification, and it is well settled that a party is not entitled to common-law indemnification unless that party establishes that it cannot be held responsible for the underlying injuries to any degree (see Rosado v Proctor & Schwartz, 66 NY2d 21, 24-25 [1985]).

2008With respect to the second cause of action, for contractual indemnification, the contract does not contain an indemnification clause, and thus there is no basis for the imposition of liability against Michels on that ground (see Rosado v Proctor & Schwartz, 66 NY2d 21, 25 [1985]).

2004Where, as here, the "clear implication" standard applies, courts may rely upon the "strength of a broadly worded [indemnification] clause" even if "framed in less than precise language" to glean the intent of the parties ( Gross v Sweet , 49 NY2d 102, 108 [1979]).

1980Interpretation of the indemnification clause must be made in the context of a general analytical framework which "frowns upon contracts intended to exculpate a party from the consequences of his own negligence” (Gross v Sweet, 49 NY2d 102, 106 ).

2026Found., Inc. , 30 AD3d 251, 252 [1st Dept 2006]).

2010Found., Inc., 30 AD3d 251, 252 [1st Dept 2006]; Colyer v K Mart Corp., 273 AD2d 809, 810 [4th Dept 2000]; Doyne v Barry, Bette & Led Duke, 246 AD2d 756, 758-760 [3d Dept 1998]).