Plaintiff maintains that the contention of the defendants that plaintiff is barred from bringing this action as a result of the subrogation waiver provision in the lease is misplaced. Plaintiff asserts that a waiver of subrogation is unenforceable if there is not a mutual requirement for both the landlord and the tenant to obtain insurance (see A to Z Applique Die Cutting Inc. v. 319 McKibbin Street Corp., 232 AD2d 512, 649 NYS2d 26 [2nd Dept. 1996]). It is contended that this subrogation clause only requires a waiver of subrogation in favor of the landlord and not the tenant and a unilateral waiver provision is not enforceable in New York.

The Court liberally construes Defendant's assertion of self-defense as an invocation of New York's qualified privilege of reply, which holds that "[a] person also has a right to defend himself or herself from charges of unlawful activity . . . . An individual is privileged to publish defamatory matter in response to an attack upon his or her reputation; the speaker is given more latitude in such a situation than if the statements were not provoked." Giuffre v. Dershowitz, 410 F. Supp. 3d 564, 574 (S.D.N.Y. 2019) (quoting Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems, at § 9.2.1); see also Konikoff v. Prudential Ins. Co. of Am., No. 94 Civ. 6863 (MBM), 1999 WL 688460, at *12 (S.D.N.Y. Sept. 1, 1999), aff'd, 234 F.3d 92 (2d Cir. 2000); Kane v. Orange Cty. Publ'ns, 649 N.Y.S.2d 26 (App. Div. 1996). C. Plaintiff's Motion in Limine

But none of those cases prohibited the use of such clauses in all circumstances and in the absence of statutory authority to that effect. See, e.g., Yauger v. Skiing Enterprises, Inc., 206 Wis.2d 76, 84, 557 N.W.2d 60, 63 (1996) (exculpatory contracts must be clear and unambiguous and "must alert the signer to the nature and significance of what is being signed"); A to Z Applique Die Cutting, Inc. v. 319 McKibbin Street Corp., 232 A.D.2d 512, 649 N.Y.S.2d 26 (1996) (lease requiring a tenant to hold landlord harmless from liability for negligence violated a New York statute expressly voiding such agreements); Borg-Warner Insurance Finance Corp. v. Executive Park Ventures, 198 Ga. App. 70, 400 S.E.2d 340 (1990) ("[a]s a general rule, a party can secure an enforceable contractual waiver of liability for the consequences of his own ordinary negligence if this intention is clearly and unequivocally expressed and if such a waiver is not otherwise prohibited by statute"); Erlich v. First National Bank of Princeton, 208 N.J. Super. 264, 288, 505 A.2d 220, 233 (1984) (bank acting as investment advisor could not rely on indemnification clause for negligence where it knowingly invested most of the plaintiffs money, constituting all of his savings, in one rather volatile stock even though the plaintiff wanted a conservative investment plan). Nor is the Court persuaded by the Trustee's attempt to compare financial advisors to attorneys, accountants and unde

But none of those cases prohibited the use of such clauses in all circumstances and in the absence of statutory authority to that effect. See, e.g., Yauger v. Skiing Enterprises, Inc., 206 Wis.2d 76, 84, 557 N.W.2d 60, 63 (1996) (exculpatory contracts must be clew and unambiguous and "must alert the signer to the nature and significance of what is being signed"); A to Z Applique Die Cutting Inc. v. 319 McKibbin Street Corp., 232 A.D.2d 512, 649 N.Y.S.2d 26 (1996) (lease requiring a tenant to hold landlord harmless from liability for negligence violated a New York statute expressly voiding such agreements); Borg-Warner Insurance Finance Corp. v. Executive Park Ventures, 198 Ga. App. 70, 400 S.E.2d 340 (1990) ("[a]s a general rule, a party can secure an enforceable contractual waiver of liability for the consequences of his own ordinary negligence if this intention is clearly and unequivocally expressed and if such a waiver is not otherwise prohibited by statute"); Erlich v. First National Bank of Princeton, 208 N.J. Super. 264, 288, 505 A.2d 220, 233 (1984) (bank acting as investment advisor could not rely on indemnification clause for negligence where it knowingly invested most of the plaintiffs money, constituting all of his savings, in one rather volatile stock even though the plaintiff wanted a conservative investment plan). Nor is the Court persuaded by the Trustee's attempt to compare financial advisors to attorneys, accountants and unde

But none of those cases prohibited the use of such clauses in all circumstances and in the absence of statutory authority to that effect. See, e.g., Yauger v. Skiing Enterprises, Inc., 206 Wis.2d 76, 84, 557 N.W.2d 60, 63 (1996) (exculpatory contracts must be clear and unambiguous and "must alert the signer to the nature and significance of what is being signed"); A to Z Applique Die Cutting, Inc. v. 319 McKibbin Street Corp., 232 A.D.2d 512, 649 N.Y.S.2d 26 (1996) (lease requiring a tenant to hold landlord harmless from liability for negligence violated a New York statute expressly voiding such agreements); Borg-Warner Insurance Finance Corp. v. Executive Park Ventures, 198 Ga. App. 70, 400 S.E.2d 340 (1990) ("[a]s a general rule, a party can secure an enforceable contractual waiver of liability for the consequences of his own ordinary negligence if this intention is clearly and unequivocally expressed and if such a waiver is not otherwise prohibited by statute"); Erlich v. First National Bank of Princeton, 208 N.J. Super. 264, 288, 505 A.2d 220, 233 (1984) (bank acting as investment advisor could not rely on indemnification clause for negligence where it knowingly invested most of the plaintiff's money, constituting all of his savings, in one rather volatile stock even though the plaintiff wanted a conservative investment plan). Nor is the Court persuaded by the Trustee's attempt to compare financial advisors to attorneys, accountants and und

sk of liability to third parties through the use of insurance are generally enforceable ( see Kinney v Lisk Co., 76 NY2d 215; Hogeland v Sibley, Lindsay Curr Co., 42 NY2d 153), a landlord may not circumvent General Obligations Law § 5-321 `simply by placing the burden to procure insurance on the tenant'" ( Breakaway Farm, Ltd. v Ward, 15 AD3d at 518, quoting Graphic Arts Supply v Raynor, 91 AD2d 827, 828). Accordingly, here, the lease provision purporting to hold the defendants Halstead Harrison Partnership, the owner of the property, and Minskoff Grant Realty Management Corp., the managing agent (hereinafter together the defendants), harmless for injury to the plaintiffs' property is unenforceable pursuant to General Obligations Law § 5-321 because it attempts to relieve the defendants of their responsibility for damages caused as a result of their own negligence ( see Breakaway Farm, Ltd. v Ward, 15 AD3d at 518; Glens Falls Ins. Co. v City of New York, 293 AD2d 568, 570-571; A to Z Applique Die Cutting v 319 McKibbin St. Corp., 232 AD2d 512, 513). Since there remain triable issues of fact as to whether, among other things, the defendants were required to make certain repairs to the subject premises during the term of the lease, whether they were negligent in failing to make or failing to properly make those repairs, and whether Hurricane Frances was the sole proximate cause of the damage to the plaintiffs' property, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them. The defendants' remaining contentions are without merit.

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 ( see Gross v. Sweet, 49 NY2d 102, 107; Radius, Ltd. v. Newhouse, 213 AD2d 614, 615). 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 ( see Kinney v. Lisk Co., 76 NY2d 215; Hogeland v. Sibley, Lindsay Curr Co., 42 NY2d 153), a landlord may not circumvent General Obligations Law § 5-321 "simply by placing the burden to procure insurance on the tenant" ( Graphic Arts Supply v. Raynor, 91 AD2d 827, 828; see Port Auth. of N.Y. N.J. v. Evergreen Intl. Aviation, 275 AD2d 358, 359-360; A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 AD2d 512, 513; Radius, Ltd. v. Newhouse, supra at 615). Accordingly, General Obligations Law § 5-321 renders the lease provision purporting to hold the defendants harmless for injury to the plaintiffs' property unenforceable because it attempts to relieve the defendants of their responsibility for damages caused as a result of their own negligence ( see Port Auth. of N.Y. N.J. v. Evergreen Intl. Aviation, supra; A to Z Applique Die Cutting v. 319 McKibbin St. Corp., supra at 513; Radius, Ltd. v. Newhouse, supra at 615; Metropolitan Art Assoc. v. Wexler, 118 AD2d 548). Since there remain triable issues of fact as to whether the defendants undertook to make repairs to the electrical system during the term of the leasehold and, as a result, are liable for negligence in failing to make or properly make those repairs, the defendants' motion for summary judgment should have been denied ( see Winby v. Kustas, 7 AD3d 615; Colicchio v. Port Auth. of N.Y. N.J., 246 AD2d 464; Cherubini v. Testa, 130 AD2d 3

The defendants' sixth affirmative defense asserts that in the lease, the tenant waived all claims against the landlords for damages to goods, wares, and merchandise. Pursuant to General Obligations Law § 5-321, a lease provision purporting to hold the landlord harmless for injury to the tenant's property resulting from the landlord's own negligence is unenforceable (see A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 A.D.2d 512, 513). Therefore, this affirmative defense should be dismissed.

Pursuant to General Obligations Law § 5-321, a lease provision which purports to exempt a lessor from liability for its own acts of negligence is void and unenforceable (see, Gross v. Sweet, 49 N.Y.2d 102, 107; Radius Ltd. v. Newhouse, 213 A.D.2d 614, 615). Although lease provisions in which the parties allocate the risk of liability to third parties between themselves through the use of insurance are generally enforceable (see, Kinney v. Lisk Co., 76 N.Y.2d 215; Hogeland v. Sibley, Lindsay Curr Co., 42 N.Y.2d 153; Santamaria v. 1125 Park Ave. Corp., 238 A.D.2d 259, 260), a landlord may not circumvent General Obligations Law § 5-321 "simply by placing the burden to procure insurance on the tenant" (Graphic Arts Supply v. Raynor, 91 A.D.2d 827, 828; see also, A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 A.D.2d 512, 513; Radius Ltd. v. Newhouse, supra, at 615).

ORDERED that the defendant United States Aviation Underwriters, Inc., is awarded one bill of costs. The Supreme Court erred in denying the motion of the defendant United States Aviation Underwriters, Inc., for summary judgment inasmuch as the insurance procurement clause under which the plaintiff seeks a defense was void and unenforceable pursuant to General Obligations Law § 5-321 (see, Port Authority of New York and New Jersey v. Evergreen International Aviation, Inc., ___ A.D.2d ___ [decided herewith]); see also, A to Z Applique Die Cutting v. 319 McKibbin St. Corp., 232 A.D.2d 512, 513; Radius v. Newhouse, 213 A.D.2d 614, 615; Metropolitan Art Assocs. v. Wexler, 118 A.D.2d 548).