MAHON v. DAVID ELLIS REAL ESTATE (2018)

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered August 10, 2017, which, insofar appealed from as limited by the briefs, denied third-party defendant USC Operating Company, LLC d/b/a Union Square Café's (USC) motion to dismiss the third-party claim for contractual indemnification, unanimously affirmed, without costs.

The indemnification clause in the contract between David Ellis Real Estate, L.P. (Ellis), the owner of the building outside which plaintiff fell, and its tenant, USC, does not violate General Obligations Law § 5–321 because it does not purport to indemnify David Ellis from liability for its own negligence (see Glover v. City of New York, 215 A.D.2d 146, 626 N.Y.S.2d 122 [1st Dept. 1995] ).  However, while section 7–210 of the Administrative Code places the obligation upon Ellis as landowner to keep the sidewalk in good repair, the lease agreement broadly states that USC would indemnify Ellis for all personal injury claims arising from an accident that occurred on the sidewalks adjoining its demised premises.  Accordingly, the record before us precludes a determination, as a matter of law, as to whether USC will be required to indemnify Ellis for the subject personal injury claim.