American Home Assurance Co. v. Morris Industrial Builders, Inc.

180 A.D.2d 567

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (William J. Davis, J.), entered January 17, 1991, which denied defendant-appellant’s motion for summary judgment and plaintiff’s cross motion for partial summary judgment dismissing defendant’s third affirmative defense, unanimously modified on the law, to the extent of granting plaintiff’s cross motion, and otherwise affirmed, with costs.

Although plaintiff does not appeal from the denial of its cross motion for partial summary judgment dismissing the third affirmative defense based on the indemnity agreement entered into between plaintiff’s subrogor and defendant-appellant, upon a search of the record (Oringer v Rotkin, 162 AD2d 113), we find such indemnity agreement void as against public policy because it was entered into "in connection with or collateral to” the construction contract between defendant and plaintiff’s subrogor (General Obligations Law §§ 5-322.1, 5-323; Brown v Two Exch. Plaza Partners, 76 NY2d 172). Accordingly, there is no need to reach the issue of whether plaintiff’s subrogor executed the indemnity agreement under duress. Concur—Carro, J. P., Wallach, Kassal and Rubin, JJ.