LEIBEL v. County of Suffolk, third-party defendant-appellant. (2005)

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 24, 2003, as denied, in part, its motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

The indemnification provision in the agreement between the parties was void as against public policy and unenforceable, as it sought to indemnify the third-party plaintiff, Kone, Inc., f/k/a FHE Services, Inc., s/h/a Flynn Hill Elevator Company (hereinafter Kone), fully for its own negligence (see General Obligations Law § 5-322.1;  Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795, 658 N.Y.S.2d 903, 680 N.E.2d 1200;  Carriere v. Whiting Turner Contr., 299 A.D.2d 509, 511, 750 N.Y.S.2d 633).   Moreover, contrary to the Supreme Court's conclusion, the language in the provision was not ambiguous, and an interpretation of the provision that would provide for the partial indemnification of Kone for liability resulting from the negligent acts of the County of Suffolk or others “would distort the contract's apparent meaning” (Tikotzky v. City of New York, 286 A.D.2d 493, 494, 729 N.Y.S.2d 525).   Because the provision was not ambiguous and was unenforceable, there remained no material issue of fact and the County was entitled to summary judgment dismissing the third-party complaint in its entirety (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;   Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  cf. DePasquale v. Daniel Realty Assoc., 304 A.D.2d 613, 757 N.Y.S.2d 477).

We further note that absent a finding of negligence against Kone, it will not be liable to the plaintiff.