Upon the foregoing papers, the motion of third-party defendant ADCO ELECTRICAL CORP. for partial summary judgment, inter alia, conditionally dismissing the third-party action for indemnification by defendant/third-party plainitff McCLINCH EQUIPMENT SERVICES, INC. is denied as premature.

Plaintiff commenced this action to recover damages for injuries allegedly sustained when he fell from a scissor lift after being struck in the head by a metal rod hanging down from a ceiling conveyor system inside the U.S. Post Office located at 341 Ninth Avenue in New York City. Plaintiff was employed by third-party defendant ADCO ELECTRICAL CORP. (hereinafter ADCO), and had been installing speakers as part of a new intercom system at that location. ADCO had leased the subject scissor lift from third-party plaintiff McCLINCH EQUIPMENT SERVICES, INC. (hereinafter McCLINCH).

Insofar as it is relevant, the equipment lease between ADCO and McCLINCH contained a detailed indemnification clause under which ADCO agreed, in relevant part, to indemnify McCLINCH against the claims of any third parties for loss, injury or damage to their persons and property arising out of ADCO's possession, use, maintenance or return of the equipment, including any legal costs incurred in the defense of such actions. It is on this basis that McCLINCH commenced a third-party action against ADCO seeking contractual [*2]indemnification.

On a prior motion, McCLINCH successfully sought the dismissal of plaintiff's causes of action arising under Labor Law §§200, 240 and 241(6). However, the dismissal of plaintiff's cause of action for common-law negligence was denied in the face of deposition testimony suggesting that the subject lift may not have been operating properly at the time of the injury. Thus, plaintiff testified that although a scissor lift is supposed to "stop on a dime" when the operator takes his hands off of the controls, the lift in question did not.

In moving for partial conditional summary judgment against McCLINCH in the third-party action, ADCO claims that it may not be required to indemnify McCLINCH if the latter is found to have negligently leased a defective product. According to ADCO, under General Obligations Law §5-322.1, the subject indemnification clause is void and unenforceable to the extent that McCLINCH is seeking to be indemnified for its own negligence. ADCO further claims that it may not be required to indemnify McCLINCH even if the latter is found to be only partially liable for plaintiff's injuries. Finally, ADCO contends that there is no proof that plaintiff suffered a "grave injury" as required by Workers' Compensation Law §11; thus, there is no basis for liability against it.

In opposition, McCLINCH contends that the General Obligations Law §5-322.1 is clearly inapplicable since there has been no finding of any negligence on its part. McCLINCH further contends that this section of the General Obligations Law cannot apply here, as the injury did not occur in the context of construction, alteration, repair or maintenance of any building, structure, appurtenance or appliance.

At the outset, the Court must note that since the lease agreement between McCLINCH and ADCO was entered into incident to the construction work being performed at the subject site, §5-322.1 of the General Obligations Law is fully applicable to their contract (see DeFilippis Crane Serv, v. Joannco Contr Corp., 132 AD2d 517).

Generally stated, General Obligations Law §5-322.1 prohibits and renders unenforceable any promise to hold harmless or indemnify a promisee against its own negligence (cf. Quevedo v. City of New York, 56 NY2d 150). Thus, the statute would bar any recovery from ADCO for loss or damage caused by McCLINCH's own negligence. Nevertheless, and contrary to ADCO's contention, the statute does not preclude McCLINCH from requiring indemnification for damages caused by or resulting from the negligence of any other party, e.g., the promissor. Thus, ADCO remains at least potentially liable to indemnify McCLINCH depending on the apportionment of liability at trial. What the statute prohibits is the indemnification of the promisee where the loss, damage or injury results, in whole or in part, from the negligence of the promisee, his agents, servants or employees (see General Obligations Law §5-322.1 [as amended L1981 ch 964]; cf. Quevedo v.City of New York, 56 NY2d 150).

Finally, there is no merit to ADCO's claim that §11 of the Workers' Compensation Law prohibits the impleader of an employer in cases where no grave injury has been sustained. The statute in question specifically exempts from its provisions written contracts executed prior to the date of the accident which include a promise, e.g., by a lessee to indemnify a lessor against loss or damage to third parties that may arise out of the lessee's use of the leased equipment (see Workers' Compensation Law §11). However, as fault has yet to be established in this case, ADCO's motion for partial summary judgment in the third-party action is premature.

Accordingly, it is [*3]

ORDERED that the motion is denied.

E N T E R,

S/

Robert J. Gigante,J.S.C.

Dated: August 21, 2007