Opinion
819
August 28, 2003.
Order, Supreme Court, New York County (Walter Tolub, J.), entered September 4, 2002, which denied the motion of third-party defendant/fourth-party plaintiff New Water Street Corp. (New Water) for summary judgment conditionally granting its claim for indemnification from fourth-party defendant The Depository Trust Company (Depository), unanimously affirmed, without costs. This action and Great Northern Insurance Company v. Interior Construction Corp. are to be consolidated and remanded for further proceedings.
Richard H. Bakalor, for plaintiff.
Before: Buckley, P.J., Rosenberger, Ellerin, Lerner, JJ.
Defendant Interior Construction Corp. contracted with Depository to perform renovations in the latter's commercial space in the building owned by New Water. During the renovations, Interior cut a pipe and a large flood ensued, causing the tenant occupying the space below that of Depository to sustain substantial damages. Plaintiff Security Insurance Company of Hartford, as Depository's subrogee, commenced the instant action for negligence. In the fourth-party action, New Water seeks indemnification from its tenant Depository for any liability imposed upon it in the third-party action, premising its claim of entitlement to such relief upon the indemnification provision contained in the lease between it and Depository. Under the lease provision entitled "Non-Liability and Indemnification" in subdivision (i) the landlord is insulated from liability to the tenant and others for "injury, damage or loss, unless caused by or resulting from the negligence of Landlord * * * without contributory negligence on the part of Tenant or * * * its contractors." In subdivision (ii) the tenant Depository agrees to indemnify the landlord, New Water, inter alia, against "any and all claims arising from * * * (A) — any condition created (other than by Landlord) in or about the premises."
Depository, in opposition to New Water's motion, submitted an internal security report indicating that New Water may have been responsible for the condition that resulted in the water damage. New Water failed to adequately overcome the issues raised and to demonstrate its entitlement to indemnification under the provisions in the lease as a matter of law.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.