In Alayev v. Juster Assoc., LLC, the plaintiff tripped and fell over an uneven sidewalk in front of a liquor store.  Plaintiff sued the liquor store (tenant), and building owner.  The building owner moved to dismiss the complaint arguing that it did not have actual or constructive notice of the defect.  The court denied the motion because the owner failed to establish a lack of constructive notice.  The building owner also moved for summary judgment on its cross-claim for indemnification against the tenant.  Since plaintiff allegedly tripped over a structural defect, and the terms of the lease did not require the tenant to make structural repairs, the Court held that the building owner was not entitled to indemnification.

In its holding, the Court reiterated the well-known principle of law: “While a landlord and tenant are free to negotiate at arm’s length for allocation of the risk of liability to third parties, to the extent that such a broad indemnification for the fault of another can ever be effective, the language expressing such intent must be unmistakable.”  Since the lease did not require the tenant to make structural repairs, the Court found that the indemnification provision did not “unmistakably” require the tenant to indemnify the landlord.

Though indemnification claims are often asserted, it can be difficult to prevail.  The specific language of the contract/lease will be reviewed to determine whether the provision “unmistakably” calls for indemnification in the specific situation.

Thanks to Moya O’Connor for her contribution to this post.  For any questions contact ">.