Opinion
2013-01-3
Daniel ROBBINS, et al., Plaintiffs, v. GOLDMAN SACHS HEADQUARTERS, LLC, et al., Defendants–Respondents. Goldman Sachs Headquarters, LLC, et al., Third–Party Plaintiffs–Respondents, v. Zwicker Electric Co., Inc., Third–Party Defendant–Appellant.
Milber Makris Plousadis & Seiden LLP, White Plains (Gregory Saracino of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Ellyn B. Wilder of counsel), for respondents.
Milber Makris Plousadis & Seiden LLP, White Plains (Gregory Saracino of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Ellyn B. Wilder of counsel), for respondents.
GONZALEZ, P.J., FRIEDMAN, SAXE, RICHTER, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered September 15, 2011, which, to the extent appealed from as limited by the briefs, denied third-party defendant Zwicker Electric Co.'s motion for summary judgment, seeking dismissal of the third-party claims of defendants Goldman Sachs Headquarters, LLC and Tishman Construction Corp. for contractual indemnity, common law indemnity, and contribution, unanimously affirmed, without costs.
In this Labor Law case, questions of fact exist as to whether insufficient lighting was a proximate cause of plaintiff's accident ( see Capuano v. Tishman Constr. Corp., 98 A.D.3d 848, 950 N.Y.S.2d 517 [1st Dept.2012];Murphy v. Columbia Univ., 4 A.D.3d 200, 773 N.Y.S.2d 10 [1st Dept.2004] ). Zwicker Electric Co. (Zwicker) installed and maintained the temporary lighting in the area of plaintiff's accident, and both plaintiff and his foreman testified that it was very dark. While the sheet of metal that had been covering a large opening in the floor bore the words “ danger” and “hole,” neither worker observed the writing, allegedly because of inadequate lighting, and both were unaware that the metal was covering a hole until they moved it, causing plaintiff to fall into the hole.
The contract between defendants and Zwicker obligates Zwicker to indemnify defendants from claims “arising out of or resulting from the performance of Contractor's Work, or the Contractor's operations” or, inter alia, for claims caused by Zwicker's “willful or negligent act[s] or failures to act.” The lighting provided by Zwicker was clearly a tool supplied for the other contractors to perform their work, and thus the accident arose out of Zwicker's work ( see Balbuena v. New York Stock Exch., Inc., 49 A.D.3d 374, 853 N.Y.S.2d 330 [1st Dept.2008],lv. denied14 N.Y.3d 709, 2010 WL 1794943 [2010] ). Moreover, the questions of fact concerning Zwicker's negligence would also trigger the indemnity provision.