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TRIVIAL DEFECT IN SIDEWALK NOT ACTIONABLE, DESPITE ABSENCE OF NEGLIGENCE BROAD INDEMNFICATION CLAUSE MANDATED PAYMENT OF DEFENDANT’S COSTS ASSOCIATED WITH THE ACTION.

The First Department determined the sidewalk defect was trivial and not actionable but the costs associated with defending the action were recoverable under the broad language of an indemnification clause (despite the absence of negligence):

Plaintiff’s description of the alleged defect that caused her fall as an “uneven spot” that “wasn’t as level as the other side” of a “little ridge” of concrete in the ground, without more, establishes that the alleged defect was trivial and nonactionable … . Moreover, defendants established that they had no notice of the alleged defect … . …

The indemnification provision in Montesano’s contract was … broad and required Montesano to indemnify defendants for liability, damage, etc., “resulting from, arising out of or occurring in connection with the execution of the Work,” including attorneys’ fees. Thus, although there was no negligence here, to the extent defendants incurred costs connected with Montesano’s execution of its work, which included constructing/resurfacing roads and sidewalks on this shopping center renovation project, Montesano is required to indemnify defendants. Robinson v Brooks Shopping Ctrs., LLC, 2017 NY Slip Op 01972 1st Dept 3-16-17

 

NEGLIGENCE (TRIVIAL DEFECT IN SIDEWALK NOT ACTIONABLE, DESPITE ABSENCE OF NEGLIGENCE BROAD INDEMNFICATION CLAUSE MANDATED PAYMENT OF DEFENDANT’S COSTS ASSOCIATED WITH THE ACTION)/CONTRACT LAW (INDEMNFICATION CLAUSE, TRIVIAL DEFECT IN SIDEWALK NOT ACTIONABLE, DESPITE ABSENCE OF NEGLIGENCE BROAD INDEMNFICATION CLAUSE MANDATED PAYMENT OF DEFENDANT’S COSTS ASSOCIATED WITH THE ACTION)/INDEMNIFICATION CLAUSE TRIVIAL DEFECT IN SIDEWALK NOT ACTIONABLE, DESPITE ABSENCE OF NEGLIGENCE BROAD INDEMNFICATION CLAUSE MANDATED PAYMENT OF DEFENDANT’S COSTS ASSOCIATED WITH THE ACTION)/SLIP AND FALL (TRIVIAL DEFECT IN SIDEWALK NOT ACTIONABLE, DESPITE ABSENCE OF NEGLIGENCE BROAD INDEMNFICATION CLAUSE MANDATED PAYMENT OF DEFENDANT’S COSTS ASSOCIATED WITH THE ACTION)/TRIVIAL DEFECT (SLIP AND FALL, TRIVIAL DEFECT IN SIDEWALK NOT ACTIONABLE, DESPITE ABSENCE OF NEGLIGENCE BROAD INDEMNFICATION CLAUSE MANDATED PAYMENT OF DEFENDANT’S COSTS ASSOCIATED WITH THE ACTION)

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