Opinion
Argued October 12, 1981
Decided November 17, 1981
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ARTHUR S. HIRSCH, J.
Richard Bakalor for third-party defendant-appellant.
Michael Majewski, Joseph D. Ahearn and Frank E. Maher for third-party plaintiffs-respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The indemnity clause provided in part that third-party defendant Wachtel, Dukauer and Fein, Inc. (Wachtel), the subcontractor, would assume responsibility and liability for any and all injuries to any person, including the subcontractor's employees, for any damages "caused by or resulting from or arising out of any act or omission in connection with this Subcontract or the prosecution of work hereunder". Under the subcontract, Wachtel was responsible not only for plumbing installations but also for providing plumbing materials and unloading and distributing them at the worksite. It is undisputed that plaintiff was injured while distributing plumbing materials.
Because the plaintiff, an employee of the subcontractor, was injured in the prosecution of the work under the subcontract, the indemnity provision became controlling with respect to the responsibility and liability for the injury.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.