747 Third Avenue Corp. v. Killarney

Ross, J.,

dissents in a memorandum as follows: This is a subrogation action commenced by plaintiffs’ subrogee to recover the costs of the litigation of three fire damage claims. Because Section 9.06 of the underlying lease included language which exempted plaintiffs-landlord from liability for damages *378for their own negligence, the court properly found, the clause void and unenforceable pursuant to General Obligations Law § 5-321 (see, Metropolitan Art Assocs. v Wexler, 118 AD2d 548) and dismissed the second cause of action of the complaint.

The court also properly dismissed the third and fourth causes of action based upon Sections 9.03 and 9.05 of the lease requiring defendants-tenants to indemnify plaintiffs-landlord for damages occurring "upon, in or about” the demised premises. As the plain meaning of the term "Demised Premises” is limited to the actual space leased, defendants were not responsible under the lease for damages to other portions of the building. The first cause of action was properly dismissed as moot.

Accordingly, the order denying plaintiffs’ motion for summary judgment and granting that portion of defendants’ cross-motion seeking summary judgment dismissal of the complaint should be affirmed.