MUNOZ v. HILTON HOTELS CORPORATION (2011)

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 27, 2010, which, to the extent appealed from as limited by the briefs, denied appellant Sunstone Hotel Properties, Inc.'s (SHP) cross motion for summary judgment on its fifth-party claim for contractual indemnification against respondent Sunstone 42nd Street Lessee, Inc., unanimously affirmed, without costs.

Under controlling Maryland precedent (Mass Tr. Admin. v. CSX Transp., Inc., 349 Md. 299, 309–310, 708 A.2d 298, 303–304 [1998] ), the contract's indemnification provision unequivocally provides that respondent hotel owner is to indemnify appellant hotel manager for all acts arising from appellant's performance of the contract.   However, Maryland law also provides that in construing a contract relating to the construction, repair, or maintenance of a building or structure, an indemnification provision is void and unenforceable as against public policy if it would operate to indemnify a party for liability for damages proximately caused by that party's sole negligence (Md. Code Ann., Cts. & Jud. Proc. § 5–401(a);  Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592–593, 578 A.2d 1202, 1206 [1990] ).   Since we note, upon review of the record, that a triable issue of fact remains as to whether appellant's sole negligence was the proximate cause of plaintiff's injuries, denial of summary judgment was proper (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).