
    Leo Margolin, Respondent, v. New York Life Insurance Company, Appellant, and Park & Estate Maintenance, Inc., Respondent. New York Life Insurance Company, Third-Party Plaintiff-Appellant, v. Park & Estate Maintenance, Inc., Third-Party Defendant-Respondent.
    Argued February 5, 1973;
    decided April 25, 1973.
    
      
      Robert Devine, Stephen W. O’Leary, Thomas J. Mason, Steven R. Pegalis and Stephen W. O’Leary, Jr. for appellant.
    I. The landlord is not responsible in this case for the presence of a trivial irregularity on the sidewalk where no unusual danger confronts a pedestrian. (Dack v. Trustees of Peekskill Military Academy, 247 App. Div. 797; Smith v. Brown Realty Corp., 134 Misc. 516; Caldicott v. City of New York, 32 A D 2d 832; Gerber v. Jarold Shop, 281 App. Div. 1015, 307 N. Y. 694; Gibson v. Prudential Ins. Co., 258 App. Div. 740, 283 N. Y. 647; Horan v. Hastorf, 223 N. Y. 490; Katz v. Bora Realty Corp., 263 App. Div. 309, 289 N. Y. 809; Bonfrisco v. Marlib Corp., 30 A D 2d 655, 24 N Y 2d 817; Hallock v. Ballachey, 258 App. Div. 774, 284 N. Y. 648; Kolasky v. City of New York, 288 N. Y. 523.) II. The mere presence of a depression in the sidewalk coexisting with a patch of ice is not grounds for liability unless there is competent proof that the depression was a proximate cause of the accident. (Taylor v. City of Yonkers, 105 N. Y. 202; Fox v. City of New Rochelle, 240 N. Y. 109; McCormick v. State of New York, 263 App. Div. 791; Cundaro v. City of Johnstown, 28 A D 2d 1196; Spicehandler v. City of New York, 303 N. Y. 946; Kelly v. Rose, 291 N. Y. 611; Fiato v. State of New York, 26 Misc 2d 479; Bonfrisco v. Marlib Corp., 30 A D 2d 655, 24 N Y 2d 817; Cruz v. City of New York, 23 A D 2d 491, 17 N Y 2d 717; Golub v. City of New York, 201 Misc. 866.) III. Where a snow and ice removal contractor agrees to indemnify the owner for any and all damage of any kind caused by or resulting from the execution of its work or occurring in connection therewith, it must indemnify the owner who has been held liable to a pedestrian who slipped on ice on the sidewalk at a point where there was a depression in the sidewalk. (Levine v. Shell Oil Co., 35 A D 2d 575, 28 N Y 2d 205; Kurek v. Port Chester Housing Auth., 18 N Y 2d 450; Jordan v. City of New York, 3 A D 2d 507, 5 N Y 2d 723; Salamy v. New York Cent. System, 1 A D 2d 27; Farrell v. General Tel. Co. of Upstate N. Y., 29 A D 2d 51; Turner Constr. Co. v. Rockwood Sprinkler Co., 249 App. Div. 508, 275 N. Y. 635; Powell v. Senville, 35th St. Realty Corp., 29 Misc 2d 77; Stellato v. Flagler Park Estates, 11 Misc 2d 413, 6 A D 2d 843, 5 N Y 2d 708; Centino v. Isbrandtsen Co., 13 A D 2d 977, 11 N Y 2d 690; Ciofalo v. Vic Tanney Gyms, 10 N Y 2d 294.)
    
      Joseph Kelner and Gilbert S. Glotser for respondent.
    I. The verdict was fully supported by the weight of evidence. (Delair v. Gaudet, 4 A D 2d 736; Kelly v. Watson Elevator Co., 309 N. Y. 49; Rapant v. Ogsbury, 279 App. Div. 298; Mann v. Hunt, 283 App. Div. 140; Monllas v. City of New York, 27 A D 2d 722.) II. Defendant was negligent in failing to maintain the common sidewalk in a reasonably safe condition. (Nimons v. Montgomery Ward & Co., 275 App. Div. 983; Buchaca v. Colgate Inn, 296 N. Y. 790; Matthiesen v. Adrian, 306 N. Y. 694; Waller v. City of New York, 308 N. Y. 820; Amodeo v. New York City Tr. Auth., 10 A D 2d 982, 9 N Y 2d 760; Van Slyke v. Fivey, 266 App. Div. 889; Hunter v. Fits-Roy Development Corp., 261 App. Div. 270; Mason v. Eagles Lodge, 30 A D 2d 605.)
    
      William J. Dougherty, John E. Trecartin, Peter M. J. Reilly and William C. Morris for third-party defendant-respondent.
    Where the only evidence in the case established that the third-party defendant-respondent had conformed to the orbit of its duty, there was no basis upon which indemnity or contribution could be required of it, and the dismissal of the third-party complaint by the courts below was eminently proper. (Dole v. Dow Chem. Co., 30 N Y 2d 143; Jackson v. Associated Dry Goods Corp., 13 N Y 2d 112; Adler v. Tully & Di Napoli, Inc., 300 N. Y. 662; Inman v. Binghamton Housing Auth., 3 N Y 2d 137; Atwater & Co. v. Panama R. R. Co., 255 N. Y. 496; Bonfrisco v. Marlib Corp., 30 A D 2d 655, 24 N Y 2d 817; Golub v. City of New York, 201 Misc. 866, 282 App. Div. 666; Cruz v. City of New York, 23 A D 2d 491, 17 N Y 2d 717; Horan v. Molberger, 38 A D 2d 587; Matter of Housman, 224 N. Y. 525.)
   Jasen, J.

The plaintiff slipped and fell upon a patch of ice located on a sidewalk which was part of an apartment complex owned by defendant, New York Life Insurance Company (New York Life). At the time of the accide'nt, the sidewalk was clear of ice, except for this one patch which had formed as a result of a structural defect — a depression in the sidewalk. This defect had existed for several years prior to the accident.

Pursuant to the terms of a maintenance contract with New York Life, Park & Estate Maintenance, Inc. (Park & Estate) undertook, inter alia, to keep the walks of the apartment complex clear of snow and ice. The agreement did not, however, require Park & Estate to repair-structural defects in the sidewalk.

As a result of the fall, plaintiff brought an action for personal injuries against both New York Life and Park & Estate. Thereafter, New York Life served a cross complaint against Park & Estate, based upon common-law implied indemnity and contractual indemnity. The determination of the cross claim was, by stipulation of the parties, left to the Trial Judge.

At trial, the court dismissed plaintiff’s suit against Park & Estate at the close of plaintiff’s evidence. The jury found in favor of the plaintiff against New York Life, and the trial court dismissed New York Life’s cross complaint against Park & Estate. The Appellate Division affirmed, without opinion.

Two questions are raised upon this appeal—first, whether there is evidence in the record sufficient to justify the verdict in plaintiff’s favor on the main action; and, secondly, whether the court erred in dismissing New York Life’s cross complaint against Park & Estate.

Turning first to the main cause of action, we find that the record 'adequately supports the verdict in favor of the plaintiff against New York Life.

With respect to New York Life’s cross claim against Park & Estate, we agree that Park & Estate would not be liable to New York Life upon the common-law theory of implied indemnity, but we believe that the indemnity provision in the maintenance contract binds Park & Estate to indemnify New York Life.

The general rule is that a right of implied indemnification will arise in favor of one who is compelled to pay for another’s wrong. (28 N. Y. Jur., Indemnity, § 11, p. 27.) It follows, then, that since New York Life, and not Park & Estate, was found to be negligent in the main cause of action, New York Life cannot recover from Park & Estate on the basis of common-law implied indemnity.

As to contractual indemnity, there is a different rule. It has long been recognized that a party may protect itself from losses resulting from its liability for negligence by means of an agreement to indemnify. The rule is restricted to the extent that indemnity provisions will not be construed to indemnify a party against his own negligence unless such intention is expressed in unequivocal terms. (E.g., Kurek v. Port Chester Housing Auth., 18 N Y 2d 450.) That is not to say that the indemnity clause must contain express language referring to the negligence of the indemnitee, but merely that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement, and the surrounding facts and circumstances. (E.g., Levine v. Shell Oil Co., 28 N Y 2d 205, 211-212; Jordan v. City of New York, 3 A D 2d 507, 509, affd. 5 N Y 2d 723.)

The indemnity provision in question stated: “ The contractor [Park & Estate] hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature to persons whether employees or otherwise, and to property, including adjoining property caused by or resulting from the execution of the work or occurring in connection therewith, and agrees to indemnify and save harmless the owner, his agents, servants and employees from and against any and all claims, liability, loss, expense, damage or injury to persons and to property caused or occasioned directly or indirectly by the contractor or its work, or resulting from the use by the contractor, its agents or employees, of any materials, tools, implements, appliances, scaffolding ways, works, or machinery or other property.”

We conclude that the parties clearly expressed their unequivocal intention to have Park & Estate assume the entire risk of any liability arising from its work in removing snow and ice from the sidewalks, whether or not New York Life was negligent. (Cf. Centino v. Isbrandtsen Co., 11 N Y 2d 690, cert. den. sub nom. Universal Term. & Stevedoring Corp. v. Ibrandtsen Co., 370 U. S. 912; Salamy v. New York Cent. System, 1 A D 2d 27; Puleo v. H. E. Moss & Co., 159 F. 2d 842 [2d Cir.].) This conclusion is based upon the broad and all-inclusive language contained in the indemnity agreement, and the fact that Park & Estate undertook to remove snow and ice from New York Life’s sidewalks and failed to carry out this undertaking.

That New York Life’s liability to the plaintiff was a result of Park & Estate’s failure to remove the ice is evident from the record. The accident was not due solely to the structural defect, for which New York Life was responsible—it was due to the concurrence of that structural defect with a slippery condition, for which New York Life was also responsible, but which Park & Estate had contracted to remove. Plaintiff did not catch his foot in the depression—he slipped on ice which had formed in the. depression on a sidewalk which Park & Estate had undertaken to clear. Since Park & Estate was in breach of its undertaking to remove snow and ice, we conclude that New York Life was entitled, under the language of the indemnity provision, to indemnification from Park & Estate for its liability to the plaintiff.

Accordingly, the order of the Appellate Division should be modified to the extent of allowing New York Life’s cross claim against Park & Estate.

Jones, J. (dissenting).

The order of the Appellate Division should be affirmed. I agreed with the majority that the evidence was sufficient to support the plaintiff’s verdict against the New York Life Insurance Company. I disagree that there is an adequate basis for the dependent cross claim against Park & Estate Maintenance, Inc.

The issue I take with the majority depends on the interpretation properly to be put, in the factual context of this litigation, on the indemnity provisions of the contract between New York Life and Park & Estate.

The trial court dismissed plaintiffs ’ complaint against Park & Estate and as well dismissed New York Life’s third-party complaint against Park & Estate. Although an appeal was taken by New York Life with respect to the dismissal of its cross claim, no appeal was taken by the plaintiff with respect to the dismissal of its direct claim against Park & Estate. Park & Estate thus stands cleared of all liability to the plaintiff based on any claims that its negligence was a proximate cause of the plaintiff’s fall and resulting injuries. It follows then that the only basis for liability, if any, of Park & Estate to New York Life, lies in the provisions of the contract between them. (Cf. Dole v. Dow Chem. Co., 30 N Y 2d 143.)

That agreement called for ‘ ‘ a complete landscape maintenance program ”. Explicit provision was made for snow plowing and ice removal, spring cleanup, liming, fertilizing, lawn replacement, mowing and trimming, shrubbery pruning, hedge trimming, cultivation of trees, shrubbery and flowers, tree pruning and removal, and in general landscaping maintenance services with respect to lawns, shrubbery and trees. It is significant that there was no provision for sidewalk maintenance or repair. On trial New York Life’s assisting operating superintendent conceded that New York Life had the duty to repair holes or depressions or damage to the sidewalks, and that company personnel under his supervision had both the duty to report defective conditions in the sidewalk where the plaintiff fell as well as to make repairs. The vice-president of Park & Estate similarly testified, without contradiction, that his company had nothing to do with sidewalk repair. And this division of responsibility between the parties was conceded by New York Life in its brief in our court.

The contract indemnity clause provided in full: The contractor [Park & Estate] hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature to persons whether employees or otherwise, and to "property, including adjoining property caused by or resulting from the execution of the work or occurring in connection therewith, and agrees to indemnify and save harmless the owner [New York Life], his agents, servants and employees from and against any and all claims, liability, loss, expense, damage or injury to persons or to property caused or occasioned directly or indirectly by the contractor or its work, or resulting from the use by the contractor, its agents or employees, of any materials, tools, implements, appliances, scaffolding ways, works or machinery or other property(emphasis added). Thus indemnity, though broad and complete to the extent applicable, extended only to damages caused or occasioned by or resulting from the performance of work under the agreement. In the context of this case indemnity accordingly is restricted to reimbursement of New York Life for liability and damages sustained by New York Life in consequence of negligent snow plowing or ice removal.

The majority opinion concludes that the record supports the verdict against New York Life. It says nothing, however, of the basis on which it would predicate the liability of New York Life. As indicated, I agree that New York Life was properly found liable to the plaintiff. That liability stems from the duty of New York Life as owner of the sidewalk, to maintain the sidewalk in a reasonably safe condition. On this record, however, the only predicate (but clearly sufficient predicate) for concluding that New York Life had breached that duty was the evidence of the structural defect in the sidewalk to which the majority refers and the corollary evidence that New York Life had notice of the defect, as the testimony relied on by the plaintiff disclosed that the defect had existed for at least one year. I note again the trial court’s dismissal of plaintiff’s claim against Park & Estate.

This case was given to the jury on the theory that they might return a verdict for the plaintiff against New York Life only if they found the latter responsible for the depression in the sidewalk. The accumulation of water in the depression and the later formation of ice were links in the chain of causation, but it was never suggested that the liability of New York Life was based on anything but its responsibility for the structural defect in the sidewalk.

The repair of structural defects in the sidewalks, the parties agreed, was not within the scope of the work to be performed by Park & Estate. Accordingly, New York Life’s loss here was not caused or occasioned by nor did it arise out of the work to be performed by Park & Estate under its landscape maintenance agreement. That being so Park & Estate has no liability in contract to New York Life under the provisions of the indemnity provision in their agreement.

The order of the Appellate Division should be affirmed in all respects.

Judges Burke, Breitel and G-abrielli concur with Judge Jasen; Judge Jones dissents and votes to affirm in a separate opinion in which Chief Judge Fule and Judge Wachtler concur.

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to plaintiff-respondent payable by defendant-appellant and to defendant-appellant payable by defendant-respondent. 
      
      . Dole v. Dow Chem. Co. (30 N Y 2d 143) is not applicable, as that case applies only to apportionment of damages among joint or concurrent tort-feasors.
     
      
      . We are here concerned solely with the shifting of losses resulting from one party’s liability for ordinary negligence, as distinguished from willful or gross negligence or for intentional torts.
      
     