Gallo v. Murray H. Miller Management, Inc.

208 A.D.2d 498, 616 N.Y.S.2d 803, 1994 N.Y. App. Div. LEXIS 9327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1994
• Status: Published

Opinion

In a negligence action, the defendant A.I.O.P. Associates appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 12, 1992, which denied its motion to compel the defendant P.T.L. Air Freight, Inc., to indemnify it for its liability to the plaintiff.

Ordered that the order is affirmed, with costs.

A.I.O.P. Associates (hereinafter AIOP) contends that paragraph 44 of its lease with its tenant P.T.L. Air Freight, Inc. (hereinafter PTL), requires PTL to indemnify AIOP against liability for negligence such as that which occurred here, through the purchase of an insurance policy naming AIOP, as well as PTL, as an insured. By failing to name AIOP as an insured on this policy, AIOP contends that PTL breached the lease and must indemnify AIOP for AIOP’s share of liability in this case.

However, paragraph 44 clearly states that the policy required under paragraph 44 was to insure AIOP against liability "wherein such [liability] resulted from any act or omission on the part of the Tenant [PTL]”. Since AIOP’s liability here is predicated on its own negligence, not on that of PTL, the policy requirement under paragraph 44 is inapplicable. Paragraph 57, on the other hand, required PTL to pay $250 per month toward an additional insurance policy under which AIOP’s own liability would be covered. It is undisputed that PTL has complied with this provision. Thus, PTL complied with the indemnification requirements under the lease. Bracken, J. P., Balletta, Copertino and Hart, JJ., concur.