FINO v. Gallagher Elevator Company, Incorporated, Defendant-Appellant, et al., Defendant. (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In 2014, plaintiff's decedent was injured while exiting an allegedly misleveled elevator located in premises leased by defendant Macy's Retail Holdings, Inc. (Macy's) and exclusively serviced by defendant Gallagher Elevator Company, Incorporated (Gallagher). Supreme Court granted Macy's motion for summary judgment dismissing the complaint and Gallagher's cross-claim against it and for an order directing Gallagher to contractually defend and indemnify Macy's. Gallagher appeals from the portion of the order directing it to defend and indemnify Macy's. We affirm.

Contrary to Gallagher's contention, the court properly granted that part of Macy's motion with respect to Gallagher's contractual obligation to provide Macy's with a defense and indemnification. We reject Gallagher's contention that it has no such obligation because Macy's was not originally a party to the 1992 contract containing the operative defense and indemnification clause between Gallagher and Macy's predecessor-in-interest. Gallagher's president testified without contradiction that the contract was subsequently assigned to Macy's and that both parties thereafter operated pursuant to its terms (see generally Pearl St. Parking Assoc. LLC v. City of Buffalo, 227 A.D.3d 1471, 1473-1474, 211 N.Y.S.3d 655 [4th Dept. 2024]).

We also reject Gallagher's contention that its contractual obligation to provide Macy's with a defense and indemnification requires a finding that Gallagher was negligent. The unambiguous intent of the clause is to provide a defense and indemnification for “any and all claims (whether meritorious or not) ․ arising out of the performance or non-performance of maintenance services” (see ZRAJ Olean, LLC v. Erie Ins. Co. of N.Y., 134 A.D.3d 1557, 1560, 22 N.Y.S.3d 779 [4th Dept. 2015], lv denied 29 N.Y.3d 915, 2017 WL 2802507 [2017]).

Contrary to Gallagher's further contention, there is no triable issue of fact whether Macy's was negligent. Although the subject elevator was older and had not been upgraded, Gallagher's president testified that it was common for older elevators to remain in operation because those installed in “the old days were built much better than they are today,” and the record establishes that Macy's “had an exclusive maintenance contract with ․ an elevator company ․ to inspect, maintain and repair the elevator and had neither actual nor constructive notice of a defective condition” (Browning v. Meadowlands Professional Park, 254 A.D.2d 725, 725, 678 N.Y.S.2d 223 [4th Dept. 1998]; see Tashjian v. Strong & Assoc., 225 A.D.2d 907, 909, 639 N.Y.S.2d 507 [3d Dept. 1996]).

Finally, we reject Gallagher's contention that the contractual defense and indemnification clause violates General Obligations Law § 5-322.1. While “[a]n indemnification agreement will be deemed void and unenforceable [under General Obligations Law § 5-322.1] if the party seeking indemnification was itself negligent” (Smith v. Nestle Purina Petcare Co., 105 A.D.3d 1384, 1387, 966 N.Y.S.2d 292 [4th Dept. 2013] [internal quotation marks omitted]), “[w]ithout a finding of negligence [against that party] ․, General Obligations Law § 5-322.1’s prohibition against indemnif[ication] ․ is inapplicable” (Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 179, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990]).