Supreme Court, Appellate Division, Second Department, New York.
Virginia FAILLA, Plaintiff,v.A.F.A. PROTECTIVE SYSTEMS, et al., Appellants;Zamar Realty Corp., Respondent, et al., Defendant.
April 25, 1988.
Pedestrian brought action against occupant of nearby building, contractor that installed sprinkler alarm system, and contractor's employee to recover damages caused by slip and fall on ice outside building. The Supreme Court, Westchester County, Dachenhausen, J., denied cross claims of contractor and employee for indemnification. Contractor and employee appealed. The Supreme Court, Appellate Division, held that contractor and employee were entitled to indemnification.
Indemnity 30(5)208k30(5) Most Cited Cases (Formerly 208k3)
Statute, which invalidates contractual provision exempting contractor from liability for injuries caused by negligence of contractor as result of services rendered in connection with real property, did not invalidate indemnification clause in contract for installation and maintenance of sprinkler alarm by contractor whose employee drained sprinkler pipes and caused water to flow onto and form ice on sidewalk on which plaintiff fell; contractor and its employee did not seek exemption from liability for negligent maintenance or repair; and contractor's conduct had nothing to do with quality of work or functioning of system. McKinney's General Obligations Law § 5-323. **449 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum, of counsel), for appellants.
Samuel F. Simone, White Plains (Kevin O'Rourke, of counsel), for respondent.
Before *695 MOLLEN, P.J., and MANGANO, BROWN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
*693 In a negligence action to recover damages for personal injuries, the defendants A.F.A. Protective Systems, Inc. (hereinafter AFA) and Robert Abrew appeal from an order of the Supreme Court, Westchester County (Dachenhausen, J.), dated July 22, 1987, which denied their motion for summary judgment on their second cross claim for indemnification against the defendant Zamar Realty Corp. (hereinafter Zamar), and for summary judgment dismissing Zamar's cross-claim for contribution from them.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, Zamar's cross claim against AFA and Abrew is dismissed, and AFA and Abrew are awarded summary judgment on the issue of liability on their cross claim against Zamar for contractual indemnification.
The plaintiff seeks to recover for damages caused when she slipped on ice on the sidewalk near the premises of the defendant Zamar. The defendant Abrew, an employee of the defendant AFA, was, at the time, on the Zamar premises *694 replacing a water flow switch pursuant to a contract with Zamar for installation and maintenance of a "sprinkler alarm". In order to replace the switch, Abrew drained the sprinkler pipes, thereby allegedly causing water to flow on to the sidewalk, which later froze, and, in turn, caused the plaintiff to fall.
The contract between AFA and Zamar contains a limitation of liability clause governing occurrences which the alarm system was designed to detect or avert. It also contains a broad indemnification clause whereby Zamar agreed to hold AFA and its employees harmless against "any claims, suits, losses, demands and expenses arising from any death of or injury to any person * * * occasioned * * * [by AFA's] performance * * * under this agreement, whether due to * * * negligence or otherwise". AFA and Abrew have cross-claimed against Zamar for full indemnification for any recovery obtained against them by the plaintiff or other codefendants and for reasonable attorney's fees. They now seek summary judgment on their cross claim against Zamar for indemnification. That motion should have been granted (see, Blair v. County of Albany, 127 A.D.2d 950, 512 N.Y.S.2d 552).
Zamar makes no claim that the occurrence giving rise to this litigation is beyond the scope of the indemnification clause. It **450 instead claims that the clause is violative of General Obligations Law § 5-323, which renders void any provision in a contract "affecting real property" which exempts the contractor from liability for injuries resulting "from the negligence of such contractor * * * as a result of work performed or services rendered in connection with the construction, maintenance and repair of real property or its appurtenances". Aside from case law holding that limitations of liability in "alarm" contracts are not barred by General Obligations Law § 5-323 (see, Antical Chems. v. Westinghouse Security Systems, 86 A.D.2d 768, 448 N.Y.S.2d 279, appeal dismissed 56 N.Y.2d 645; but cf., Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 N.Y.2d 57, 271 N.Y.S.2d 937, 218 N.E.2d 661, rearg. denied 18 N.Y.2d 751, 274 N.Y.S.2d 1031, 221 N.E.2d 183), it appears that one of the purposes of the statute on which Zamar relies is to encourage proper servicing of appurtenances to real property (see, St. Vincent's Med. Center of Richmond v. Vincent E. Iorio, Inc., 78 Misc.2d 968, 358 N.Y.S.2d 993). AFA and Abrew do not, by reliance on the indemnification clause, seek to exempt themselves from liability for negligent maintenance or repair. Rather, they seek to enforce a contractual provision by which Zamar, in effect, became their insurer against liability to third parties for conduct which, although engaged in while performing the contract, had nothing to do with either the quality of *695 their work or the functioning of the system they had installed (cf., Board of Educ., Union Free School Dist. No. 3, Town of Brookhaven v. Valden Assocs., 46 N.Y.2d 653, 416 N.Y.S.2d 202, 389 N.E.2d 798). Zamar advances no ground upon which to premise a conclusion that the indemnification clause to which it agreed is unenforceable (cf., Austro v. Niagara Mohawk Power Corp., 66 N.Y.2d 674, 496 N.Y.S.2d 410, 487 N.E.2d 267).
527 N.Y.S.2d 448, 139 A.D.2d 693
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