RONI v. (and a third-party action). (2008)

In an action, inter alia, to recover damages for personal injuries, etc., the defendant United Bank of Kuwait, PLC, appeals from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated March 13, 2006, as denied that branch of its motion which was for summary judgment on its cross claim for contractual indemnification against the defendant Baitul Jannah Zame Masjid and Muslim Community Center, Inc.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The infant plaintiff, by his father, commenced this action after he allegedly was injured by the ingestion of lead paint in an apartment located in a building “owned” by the defendant United Bank of Kuwait, PLC (hereinafter the Bank), and leased to the defendant Baitul Jannah Zame Masjid and Muslim Community Center, Inc. (hereinafter the Baitul Center) (see Roni v. Rahim, 49 A.D.3d 851, 854 N.Y.S.2d 484 [decided herewith] ).   The Bank, inter alia, moved for summary judgment on its cross claim for contractual indemnification against the Baitul Center based upon the contractual indemnification clause of the lease.   However, the Bank failed to demonstrate its prima facie entitlement to judgment as a matter of law by establishing that the indemnification provisions shifted all responsibility for third-party claims to the Baitul Center regardless of the Bank's own negligence.   In such an instance, the indemnification provision would be unenforceable (see General Obligations Law § 5-321;  Wolfe v. Long Is. Power Auth., 34 A.D.3d 575, 824 N.Y.S.2d 390;  Breakaway Farm, Ltd. v. Ward, 15 A.D.3d 517, 789 N.Y.S.2d 730;  see also Multiple Dwelling Law § 78).

Accordingly, the Supreme Court properly denied that branch of the Bank's motion which was for summary judgment on its cross claim for contractual indemnification against the Baitul Center (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).