614 Third Avenue Corp. v. Grand Iron Works, Inc. , 44 A.D.2d 531 ( 1974 )

Order, Supreme Court, New York County, entered on April 16, 1973, unanimously reversed, on the law and in the exercise of discretion, and motion of defendant-appellant to amend answer granted. Appellant shall recover of respondents $40 costs and disbursements of this appeal. Appeal from order of the samé court entered July 20, 1973, denying reargument of the foregoing motion, unanimously dismissed as academic, without costs and without disbursements. The action is by an insurance carrier to recover in subrogation; the proposed amendment seeks to interpose the affirmative defense of waiver of subrogation rights. The application was denied on the basis of section 5-323 of the General Obligations Law, which voids as against public policy an agreement “ affecting real property ” whereby the contractor exempts himself or agents from liability resulting from work performed in connection therewith. The subject contract is one indemnifying an owner for the latter’s negligence and does not fall within the statute. Each participant in the contract was to procure insurance to cover his own risks. This is not to contract away liability. Concur— Markewich, J. P„ Nunez, Murphy, Tilzer and Capozzoli, JJ.