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Issue: Under New York law, when is a subcontractor’s agreement to indemnify a contractor for negligence enforceable?
| Area of Law: | Business Organizations & Contracts, Personal Injury & Negligence |
| Keywords: | Contract exempting owners and contractors; Negligence; Void and unenforceable |
| Jurisdiction: | New York |
| Cited Cases: | 680 N.E.2d 1200; 556 N.E.2d 430; 223 A.D.2d 830; 198 A.D.2d 863; 69 N.Y.2d 376; 78 N.Y.2d 433; 507 N.E.2d 294; 79 N.Y.2d 218; 581 N.Y.S.2d 748; 258 A.D.2d 630; 143 A.D.2d 653; 651 N.Y.S.2d 178; 234 A.D.2d 516; 179 A.D.2d 1; 590 N.E.2d 224; 685 N.Y.S.2d 760; 664 N.Y.S.2d 799; 582 N.E.2d 586; 236 A.D.2d 211; 221 A.D.2d 942; 165 A.D.2d 652; 220 A.D.2d 490; 226 A.D.2d 202; 249 A.D.2d 163; 183 A.D.2d 991; 636 N.Y.S.2d 182; 193 A.D.2d 926; 76 N.Y.2d 172; 168 A.D.2d 477; 658 N.Y.S.2d 903 |
| Cited Statutes: | N.Y. Gen. Oblig. Law § 5-322..1 |
| Date: | 05/01/2000 |
New York General Obligation Law § 5-322.1 precludes owners and contractors from passing construction-related liability, resulting from their own negligence, onto their subcontractors. Under § 5-322.1, contract provisions exempting owners and contractors from liability for their own negligence are void and unenforceable as a matter of law. Numerous cases specify whether § 5-322.1 applies and its impact if applicable.
First, where the indemnified owner or contractor is not at all liable (aside from any vicarious liability imposed by labor statutes), N.Y. Gen. Oblig. Law § 5-322.1 is not applicable, and the owner or contractor can proceed to be indemnified under the contract or under common-law principles. Cases on point include:
Connolly v. Brooklyn Union Gas Co., 168 A.D.2d 477, 562 N.Y.S.2d 718 (2d Dep’t 1990) (contractor must demonstrate owner was negligent in whole or part before indemnity provision can be rendered void or unenforceable by N.Y. Gen. Oblig. Law § 5-322.1).
Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 556 N.Y.S.2d 991, 556 N.E.2d 430 1990 (same).
Savigny v. Marrano/Marc Equity Corp., 221 A.D.2d 942, 634 N.Y.S.2d 592 (4th Dep’t 1995) (statute is inapplicable and owner is entitled to conditional judgment where owner established that worker’s injuries arose out of performance of contract and that owner was not negligent).
Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 604 N.Y.S.2d 432 (4th Dep’t 1993) (plaintiff that did not direct or control work […]