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Indemnification Clause in Lease/Alteration Agreements Unenforceable—No Exception for Lessor’s Negligence

The Second Department determined an indemnification clause in lease/alteration agreements was unenforceable because it was not limited to the lessee’s acts or omissions and because it did not make exceptions for the lessor’s negligence (General Obligations Law 5-321):

Broad indemnification provisions … which are not limited to the lessee’s acts or omissions, and which fail to make exceptions for the lessor’s own negligence, are unenforceable pursuant to General Obligations Law § 5-321 where [the relevant agreements] were not negotiated at arm’s length by two sophisticated business entities… . Nolasco v Soho Plaza Corp., 2015 NY Slip Op 05164, 2nd Dept 6-17-15

 

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ALTHOUGH DEFENDANT WAS IN DEFAULT IN THIS FORECLOSURE ACTION, SHE STILL CAN CONTEST THE AMOUNT OWED; THE REFEREE’S REPORT HERE WAS REJECTED BECAUSE IT WAS BASED IN PART ON UNPRODUCED BUSINESS RECORDS AND THE MATTER WAS REMITTED FOR RECALCULATION (SECOND DEPT).
THE FOLD-DOWN LADDER WHICH WAS PERMANENTLY ATTACHED TO THE CEILING WAS THE FUNCTIONAL EQUIVALENT OF A LADDER FOR GAINING ACCESS TO THE ATTIC; PLAINTIFF FELL WHEN THE LADDER DETACHED FROM THE CEILING; PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION (SECOND DEPT). ​
THE BANK’S FAILURE TO ATTACH THE BUSINESS RECORDS REFERRED TO IN THE FOUNDATIONAL AFFIDAVIT PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).
ANALYTICAL CRITERIA FOR MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE DEFENDANT SUBMITS EVIDENCE, CLEARLY EXPLAINED; PLAINTIFF IS NOT PENALIZED FOR NOT SUBMITTING EVIDENCE IN OPPOSITION; BURDEN NEVER SHIFTS TO PLAINTIFF.
DEFENDANT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE LIQUID ON THE FLOOR WHICH ALLEGEDLY CAUSED PLAINTIFF TO SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S COMPLAINT ALLEGING THE LANDLORD ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARMTENTS WAS PROPERLY DISMISSED (SECOND DEPT).
Defendant Failed to Demonstrate Lack of Constructive Notice of Condition; Did Not Present Evidence of Last Inspection of Area Where Slip and Fall Occurred

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