On August 1, 2024, the First Department issued a decision in Shah v. 20 E. 64th St. LLC, 2024 NY Slip Op. 04116, holding that even a broadly worded indemnification provision was insufficient to overcome Hooper’s strong presumption against inter-party indemnification, explaining:
We now turn to the quantification of damages to which 20 East 64th is entitled pursuant to contractual indemnification. An agreement to assume contractual indemnification must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The indemnity agreement must be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances. An indemnity provision should not be extended to include damages which are neither expressly within its terms nor of such character that it is reasonable to infer that they were intended to be covered under the contract.
Admittedly, as Supreme Court stated on the record, § 4.6.1 is broadly worded. Nevertheless, broadly worded language does not entitle a court to deviate from Hooper’s exacting standard that the agreement must contain unmistakably clear language of the parties’ intent.
It is not unmistakably clear or clearly implied from the language of § 4.6.1 that Urban assumed a duty to indemnify 20 East 64th for the contract damages. Urban agreed to indemnify 20 East 64th and Tri-Star for damages only to the extent caused by the negligent acts or omissions of the Subcontractor. Because the jury apportioned only 40% fault to Urban, 20 East 64th is not entitled to indemnification beyond Urban’s percentage of fault.
(Internal quotations and citations omitted).