Indemnification Clause Doesn’t Indemnify Landlord Against Its Own Negligence

What Happened: A pedestrian sues the store owner and landlord for negligence after tripping over allegedly defective cellar doors located on the sidewalk in front of the premises. The landlord asks to be let out of the suit under state laws relieving out-of-possession landlords who have no duty to make repairs for liability for defects on the property. But the court rules that the landlord, while out-of-possession, could still be liable if the victim can prove that it created or knew about the dangerous condition. So, the landlord asks the court to dismiss the case against him on the basis of the lease clause obligating the tenant to indemnify it from claims arising out of the use of the premises. The actual language:  

Tenant shall indemnify and save harmless Landlord and its agents against and from all liabilities obligations, damages, penalties, actions, proceedings, claims, costs and expenses (including without limitation, attorneys’ fees and disbursements) suffered, paid or incurred by Landlord as a result of... (b) any and all claims... arising from the conduct or management of, the demised premises or of any business therein, or any work or thing whatsoever done or any condition created (other than by Landlord for Landlord's or Tenant's account) in or about the demised premises during the term of this lease [emphasis added].

Ruling: The New York court denies the motion for dismissal on the grounds of contractual indemnity.

Reasoning: Like many states, New York frowns on contracts that purport to indemnify parties against their own negligence. Courts will read a contract as providing indemnity to a party for its own negligence only where the contractual language evinces an “unmistakable intent” to indemnify. The court ruled that the indemnity clause in this case didn’t evince unmistakable intent to indemnify the landlord for negligence on its part in creating a defective condition. Just the opposite, the clause specifically states that the tenant is not obligated to indemnify the landlord for any claim arising out of a condition created by the landlord.

• Santana v. 417 Knickerbocker Ave. Realty Corp., 2024 N.Y. Misc. LEXIS 3739, 2024 NY Slip Op 32827(U)