GREAT NORTHERN INSURANCE COMPANY v. [And a Third-Party Action]. (2005)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered April 29, 2004, which denied the motion of defendant New Water Street Corporation for summary judgment on its cross claim for contractual indemnification against defendant The Depository Trust & Clearing Corporation, unanimously reversed, on the law, without costs, and the motion granted.

 While lease provisions purporting to exempt a lessor from liability for its own negligence are void as against public policy (General Obligations Law § 5-321), where, as here, sophisticated parties negotiating at arm's length have agreed to “allocat[e] the risk of liability to third parties between themselves, essentially through the employment of insurance,” that agreement is enforceable (Hogeland v. Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 161, 397 N.Y.S.2d 602, 366 N.E.2d 263 [1977];  Parra v. Ardmore Mgt. Co., 258 A.D.2d 267, 269, 685 N.Y.S.2d 36 [1999], lv. denied 93 N.Y.2d 805, 689 N.Y.S.2d 707, 711 N.E.2d 983 [1999];  Ameri v. Diane Young Skincare Ctr., 170 A.D.2d 280, 281-282, 565 N.Y.S.2d 810 [1991], lv. denied 81 N.Y.2d 709, 599 N.Y.S.2d 803, 616 N.E.2d 158 [1993] ).

 The instant lease reflects “the ‘unmistakable intent of the parties' ” (Hogeland, 42 N.Y.2d at 159, 397 N.Y.S.2d 602, 366 N.E.2d 263, quoting Levine v. Shell Oil Co., 28 N.Y.2d 205, 212, 321 N.Y.S.2d 81, 269 N.E.2d 799 [1971] ) that Depository indemnify New Water for the latter's own negligence, except as to claims arising from a condition created by New Water or from any accident, injury or damage caused solely by New Water's negligence.   The lease further requires Depository to maintain insurance and to name New Water as an additional insured on its comprehensive general liability policy, and requires both parties to include mutual waivers of subrogation in their respective policies (see Hogeland, 42 N.Y.2d at 161, 397 N.Y.S.2d 602, 366 N.E.2d 263;  Morel v. City of New York, 192 A.D.2d 428, 429, 597 N.Y.S.2d 8 [1993] ).   Since it was stipulated that New Water's negligence was not the sole cause of the damage, New Water is entitled to contractual indemnification under the lease.

The Decision and Order of this Court entered herein on February 22, 2005 is hereby recalled and vacated (see M-1278 decided simultaneously herewith).