BREAKAWAY FARM LTD v. (and a third-party action). (2005)

In an action to recover for damage to property, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Barone, J.), entered August 12, 2003, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

 Pursuant to General Obligations Law § 5-321, a lease provision that purports to exempt a lessor from liability for its own acts of negligence is void and unenforceable (see Gross v. Sweet, 49 N.Y.2d 102, 107, 424 N.Y.S.2d 365, 400 N.E.2d 306;  Radius, Ltd. v. Newhouse, 213 A.D.2d 614, 615, 624 N.Y.S.2d 227).   Further, although lease provisions in which the parties allocate between themselves the risk of liability to third parties through the use of insurance are generally enforceable (see Kinney v. Lisk Co., 76 N.Y.2d 215, 557 N.Y.S.2d 283, 556 N.E.2d 1090;  Hogeland v. Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 397 N.Y.S.2d 602, 366 N.E.2d 263), a landlord may not circumvent General Obligations Law § 5-321 “simply by placing the burden to procure insurance on the tenant” (Graphic Arts Supply v. Raynor, 91 A.D.2d 827, 828, 458 N.Y.S.2d 115;  see Port Authority of N.Y. and N.J. v. Evergreen Intl. Aviation, 275 A.D.2d 358, 359-360, 712 N.Y.S.2d 587;  A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 A.D.2d 512, 513, 649 N.Y.S.2d 26;  Radius, Ltd. v. Newhouse, supra at 615, 624 N.Y.S.2d 227).

 Accordingly, General Obligations Law § 5-321 renders the lease provision purporting to hold the defendants harmless for injury to the plaintiffs' property unenforceable because it attempts to relieve the defendants of their responsibility for damages caused as a result of their own negligence (see Port Authority of N.Y. and N.J. v. Evergreen Intl. Aviation, supra;  A to Z Applique Die Cutting v. 319 McKibbin St. Corp., supra at 513, 649 N.Y.S.2d 26;  Radius, Ltd. v. Newhouse, supra at 615, 624 N.Y.S.2d 227;  Metropolitan Art Assoc. v. Wexler, 118 A.D.2d 548, 499 N.Y.S.2d 164). Since there remain triable issues of fact as to whether the defendants undertook to make repairs to the electrical system during the term of the leasehold and, as a result, are liable for negligence in failing to make or properly make those repairs, the defendants' motion for summary judgment should have been denied (see Winby v. Kustas, 7 A.D.3d 615, 775 N.Y.S.2d 906;  Colicchio v. Port Auth. of N.Y. & N.J., 246 A.D.2d 464, 668 N.Y.S.2d 385;  Cherubini v. Testa, 130 A.D.2d 380, 382, 515 N.Y.S.2d 29).