ON POINT WINDOW TREATMENT INC v. 208 CLIFTON PLACE LLC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for injury to property, the defendant appeals from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated March 10, 2024.  The order denied the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In August 2021, the plaintiff, as tenant, and the defendant, as landlord, entered into a commercial lease agreement for certain premises located in Brooklyn.  The lease contained provisions, among other things, requiring the plaintiff to hold the defendant harmless from all liability and placed the sole obligation to obtain insurance upon the plaintiff.  In October 2023, the plaintiff commenced this action, inter alia, to recover damages for injury to property, alleging, among other things, that it sustained significant damage to its leased space as a result of a collapse of the premises' roof, which was the sole and exclusive duty of the defendant to maintain.

The defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the plaintiff's claims were barred by the terms of the lease.  The plaintiff opposed the motion, contending, inter alia, that the lease provisions relied upon by the defendant improperly purported to relieve the defendant of liability for its own negligence and, thus, were void and unenforceable pursuant General Obligations Law § 5–321.  In an order dated March 10, 2024, the Supreme Court denied the defendant's motion.  The defendant appeals.

“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” (Breakaway Farm, Ltd. v. Ward, 15 AD3d 517, 518;  see Rodriguez v. 5432–50 Myrtle Ave., LLC, 148 AD3d 947, 949).  “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, a landlord may not circumvent General Obligations Law § 5–321 simply by placing the burden to procure insurance on the tenant” (Ben Lee Distribs., Inc. v Halstead Harrison Partnership, 72 AD3d 715, 716 [citations and internal quotation marks omitted];  see Breakaway Farm, Ltd. v. Ward, 15 AD3d at 518;  cf.  Great N. Ins. Co. v. Interior Constr.  Corp., 7 NY3d 412, 419).

Here, the lease provisions at issue, among other things, purporting to hold the defendant harmless from liability for injury to the plaintiff's property and placing the sole obligation to obtain insurance upon the plaintiff were unenforceable pursuant to General Obligations Law § 5–321 because they attempted to relieve the defendant of its responsibility for damages to the plaintiff's property as a result of the defendant's own negligence (see Ben Lee Distribs, Inc. v Halstead Harrison Partnership, 72 AD3d at 716;  Breakaway Farm, Ltd. v. Ward, 15 AD3d at 518;  Radius, Ltd. v. Newhouse, 213 AD2d 614, 615).

The defendant's remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.