Commercial Division Blog

Posted: March 14, 2022 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Commercial Division Justices

Commercial Lease Provision Exempting Party from Its Own Negligence Valid Where Parties Are Sophisticated

On February 3, 2022,  Justice Gomez of the Bronx County Commercial Division issued a decision in Titumir v Barker Ave. Estates LLC, 2022 NY Slip Op 50073(U), holding that a provision in a commercial lease exempting a party for its own negligence was valid where the lease was entered into by sophisticated parties negotiating at arm’s length and the parties have agreed to allocate the risk of liability between themselves, stating: 

Generally, pursuant to GOL § 5-321, a provision in a lease seeking to exempt a party for his own negligence is void and unenforceable as against public policy (Great N. Ins. Co. v Interior Const. Corp., 18 AD3d 371, 372 [1st Dept 2005], affd, 7 NY3d 412 [2006]; Tormey v City of New York, 302 AD2d 277, 278 [1st Dept 2003]; Gibson v Bally Total Fitness Corporation, 1 AD3d 477, 479 [2d Dept 2003]; Radius, Ltd. v Newhouse, 213 AD2d 614, 615[2d Dept 1995]). To be sure, GOL § 5-321 states that

[e]very covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.

However, case law has carved an exception to the prohibition described in the GOL §5-321. Specifically, it is well settled that an indemnification agreement in a lease shall be enforceable even if the lessor seeks to have the lessee indemnify him for his own negligence when the lease is the product of "sophisticated parties negotiating at arm's length," and "have agreed to allocate the risk of liability to third parties between themselves, essentially through the employment of insurance" (Great N. Ins. Co. at 372; see Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 161 [1977]. In explaining why GOL §5-321 does not apply in the foregoing circumstances, the court in Hogeland stated that [t]he legislative history and the statute's express invalidation of any agreement 'exempting the lessor from liability for damages for injuries resulting from the negligence of the lessor' strongly suggests that is was directed primarily to exculpatory clauses in leases whereby lessors are excused from direct liability for otherwise valid claims which might be brought against them by others. It and several parallel provisions prohibit agreements which free landlords (or others in comparable relationships) from all responsibility to a tenant (or others) for negligence; the former are thus compelled at their own peril to retain the incentive to act prudently. It is against this background of declared purpose that the indemnification clauses before us must be considered. So analyzed, Berenson is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public (internal citations omitted) (Hogeland at 160-161). Thus, in both Hogeland and Great N. Ins. Co., the lessees were obligated to indemnify the lessors, even though they had been found negligent Hogeland at 158; Great N. Ins. Co. at 372).

Defendants' motion seeking summary judgment is granted. Significantly, on this record, defendants establish that the lease and rider which bind the parties contains a provision which exempt defendants from any liability arising from the water leak alleged in the complaint. The record also establishes that insofar as this is a commercial tenancy, the lease falls within the ambit of the exception to the rule prescribed by GOL § 5-321, which renders unenforceable a lease provision such as the one in the lease and rider between the parties ,which exempts defendants from all liability, which necessarily includes their negligent acts.

The attorneys at Schlam Stone & Dolan frequently litigate issues related to the enforceability of commercial leases.  Contact our attorneys at if you or a client have questions regarding the enforceability of a commercial lease.

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