GOL § 5-322.1: construction contracts cannot indemnify a party for its own negligence

A clause in a construction contract purporting to indemnify the promisee against liability for injury caused by the promisee's own negligence, whether in whole or in part, is void and unenforceable. But the same subdivision preserves indemnity for damage caused by someone other than the promisee, even where the promisor is partly negligent. So it turns on whose negligence caused the injury, which is why the sequence of events on the hoist has to be established before the clause means anything.

They agree to establish that sequence jointly through one investigator both accept, and neither raises the indemnity clause again until that report is in front of them.

The section reaches contracts relative to the construction, alteration, repair or maintenance of a building and connected work, so a domestic renovation is within it, and a clause covering the contractor's own negligence is void whether or not the homeowner signs. What is untouched is the insurance side: the section expressly does not affect insurance contracts or other agreements issued by an admitted insurer.

They drop the indemnity clause and replace it with a requirement that the contractor name the homeowner as an additional insured and hand over the certificate before work starts.

Subdivision 2 voids precisely that: a clause conditioning a subcontractor's right to file a claim or start an action on a payment bond upon exhausting another legal remedy is void as against public policy. The only real limit is in subdivision 3, which is about timing - the section applies to contracts entered into on or after its effective date.

They agree a payment schedule for the work already certified and record in it that the bond claim remains available and unconditioned, so neither of them has to test the clause.

Whether a contractual indemnification claim seeking to indemnify a party for its own negligence is enforceable under General Obligations Law § 5-322.1.

The court held that the contractual indemnification claim was unenforceable because if the indemnitee were found negligent, the clause would violate GOB § 5-322.1, and if not negligent, there would be no basis for indemnification, so summary judgment dismissing the claim was warranted.

If CAP Rents was found to be negligent at trial, the indemnification clause would become unenforceable under General Obligations Law § 5-322.1, since it would indemnify CAP Rents for its own negligence (Itri Brick, 89 NY2d at 794).

Whether a contractual indemnification clause that requires an indemnitor to indemnify the indemnitee against its own negligence is void under General Obligations Law § 5-322.1.

Yes, the entire indemnification agreement is void and unenforceable under General Obligations Law § 5-322.1 because an indemnitee may not require an indemnitor to indemnify it against its own negligence.

Under General Obligations Law § 5-322.1, an indemnitee may not require an indemnitor to indemnify it against its own negligence.

Whether the indemnification provision in the contract between Teresharan Land and Quattro violated General Obligations Law § 5-322.1 by purporting to indemnify Teresharan Land for its own negligence.

The court held that the indemnification provision did not violate General Obligations Law § 5-322.1 because it contained a savings clause ('to the fullest extent permitted by law') and excluded liability for the sole negligence of the indemnitee.

Thus, Teresharan Land’s indemnification for liability and attorneys’ fees is subject to the savings clause and thus the indemnification provision does not violate General Obligations Law § 5-322.1.

Whether the party seeking contractual indemnification must prove itself free from negligence due to GOB § 5-322.1, and whether there was a triable issue of fact as to the Owners' negligence precluding summary judgment on contractual indemnification.

The court held that the Supreme Court should have denied summary judgment on the contractual indemnification claim because CHS raised a triable issue of fact as to whether the Owners were free from negligence, which is required under GOB § 5-322.1 for contractual indemnification to be enforceable.

Accordingly, the Supreme Court should have denied that branch of the Owners’ motion which was for summary judgment on their third-party cause of action for contractual indemnification.

Whether a contractual indemnification clause in a construction contract is void under General Obligations Law § 5-322.1 when the indemnitee's liability is based on its own negligence and there is no evidence of negligence by the indemnitor.

The court held that the indemnification clause was void and unenforceable under GOB § 5-322.1 because MPCC's potential liability would be based on its own negligence, and since MPCC failed to raise a triable issue of fact, the lower court properly dismissed the contractual indemnification claim.

Since MPCC failed to raise a triable issue of fact in opposition to Canatal’s prima facie showing, the Supreme Court properly granted that branch of Canatal’s motion which was for summary judgment dismissing the contractual indemnification cause of action in the third-party complaint.

Whether the contractual indemnification clause in the alteration agreement violated General Obligations Law § 5-322.1.

The indemnification clause did not violate General Obligations Law § 5-322.1 because it did not require Tomchinsky to indemnify the condominium defendants for their own negligence, and since the condominium defendants established their freedom from negligence, the clause as applied does not run afoul of the statute.

Moreover, since the condominium defendants have established their freedom from negligence (see Guryev v Tomchinsky, 87 AD3d 612 [2011]), the contractual indemnification agreement, as applied, does not run afoul of the proscriptions of General Obligations Law § 5-322.1 (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 795 n 5 [1997]; Lazzaro v MJM Indus., 288 AD2d 440 [2001]).