Opinion
4200.
Decided on November 10, 2011.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 27, 2010, which, to the extent appealed from as limited by the briefs, denied appellant Sunstone Hotel Properties, Inc.'s (SHP) cross motion for summary judgment on its fifth-party claim for contractual indemnification against respondent Sunstone 42nd Street Lessee, Inc., unanimously affirmed, without costs.
Cozen O'Connor, New York (John J. McDonough of counsel), for appellant.
Lester Schwab Katz Dwyer, LLP, New York (Harry Steinberg of counsel), for respondents.
Sweeny, J.P., Moskowitz, DeGrasse, Freedman, Richter, JJ.
Under controlling Maryland precedent ( Mass Tr. Admin. v CSX Transp., Inc., 349 Md 299, 309-310, 708 A2d 298, 303-304), the contract's indemnification provision unequivocally provides that respondent hotel owner is to indemnify appellant hotel manager for all acts arising from appellant's performance of the contract. However, Maryland law also provides that in construing a contract relating to the construction, repair, or maintenance of a building or structure, an indemnification provision is void and unenforceable as against public policy if it would operate to indemnify a party for liability for damages proximately caused by that party's sole negligence (Md Code Ann, Cts Jud Proc § 5-401(a); Heat Power Corp. v Air Prods. Chems., Inc., 320 Md 584, 592-593, 578 A2d 1202, 1206). Since we note, upon review of the record, that a triable issue of fact remains as to whether appellant's sole negligence was the proximate cause of plaintiff's injuries, denial of summary judgment was proper ( Alvarez v Prospect Hosp., 68 NY2d 320, 324).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.