Opinion
14097/2005.
Decided July 21, 2008.
Samuel J. Lurie, New York, New York, Plaintiff.
Bovis Lend Lease/NYCHHC/City of New York/Dormitory Authority, Newman Fitch Altheim Meyers New York, Defendant.
BG National Plumbing Heating, Mintzer Sarowitz Zeris Ledva Meyers, LLP New York, Third-Party Defendant.
RELIEF SOUGHT
Plaintiff Ladislav Denci [hereinafter plaintiff] moves for summary judgment under Section 240 (1) of the Labor Law.
Defendants Bovis Lend Lease, Inc.[hereinafter Bovis LL], Bovis Lend Lease LMB, Inc., [hereinafter Bovis LMB], New York City Health and Hospitals Corporation, City of New York and Dormitory Authority of the State of New York each oppose the plaintiff's motion for summary judgment, and cross move to dismiss plaintiff's causes of action brought under Sections 200 and 241(6) of the Labor Law; and each also moves for contractual indemnification from third-party defendant BG National Plumbing and Heating, Inc. [hereinafter BG] pursuant to the contract between the Dormitory Authority and said third-party-defendant.
BG opposes the plaintiff's motion, but submits no opposition to the defendant's motion for contractual indemnification.
BACKGROUND
The incident underlying this matter occurred on March 5, 2004, at a building contained within Jacobi Medical Center, located at 1400 Pelham Parkway in the Bronx. Plaintiff was employed by third-party defendant BG, and was doing work installing fireproofing around pipes in a building which was owned, operated and controlled by the defendant New York City Health and Hospitals Corporation. The City of New York is named as a defendant because of its ownership of the underlying land upon which the hospital is built.
Plaintiff alleges that he was using an "A frame" wooden ladder to work on overhead pipes; that he was standing on the third step from the top when the ladder fell forward; and that he was injured when his body fell to the floor . He testified further that he had been told by his supervisor to use this ladder, despite the fact that he had previously complained to the supervisor that this ladder was "shaky"; that he was not provided with any safetybelt, harness or line; and that there were no additional workers there to hold the ladder for him while he was working. Plaintiff, therefore, moves for summary judgment pursuant to section 240(1) of the Labor Law claiming that defendants have breached a nondelegable duty by failing to provide him with proper protection. Defendants and third-party defendant BG each argue that in view of testimony provided by plaintiff's supervisor, a question of fact exists as to how the accident occurred, and that therefore summary judgment under section 240(1) should be denied.
Specifically, plaintiff's immediate supervisor testified that the plaintiff had never complained to him about the ladder, and that the plaintiff told him, immediately after the accident, that he had jumped from the third step and had fallen to the floor, not that the ladder itself had collapsed or fallen. This version of the accident was memorialized in the report prepared by the supervisor immediately after the incident; which said report was identified by him when he was deposed by the plaintiff.
Bovis LMB was the construction manager; it was hired by the Dormitory Authority of the State of New York, which was also overseeing the entire project pursuant to a "memorandum of understanding" between the New York City Health and Hospitals Corporation and the Dormitory Authority. (This memorandum has not been provided to the Court.) Plaintiff's employer, BG National, was hired directly by the Dormitory Authority to perform plumbing work on the premises. In both its contracts with Bovis LMB and BG National, the Dormitory Authority is referred to as the "owner".
Although Bovis Lend Lease, Inc. and Bovis Lend Lease LMB, Inc. are listed as separate defendants, it is unclear from the pleadings and motion papers what the difference is in the respective claims against them. Since all counsel referred to them jointly as "Bovis" this Court will not differentiate between them, although it is clear that the entity which entered into the contract with the Dormitory Authority was Bovis Lend Lease LMB, Inc.
The Contract Between the Dormitory Authority and Bovis
In this contract with the Dormitory Authority, Bovis LMB, Inc. is named as the "construction manager"; and the contract sets forth the responsibilities delegated by "the owner" and assumed by Bovis LMB in its role as construction manager.
In Article XII of the contract entitled "accident prevention" it is stated:
"The construction manager shall, at all times, take every precaution against injuries to persons or damage to property and for the safety of persons engaged in the performance of the work on the job site. The construction manager shall establish and maintain, at all times, safety procedures in connection with the work as required by the current New York Labor Law and regulations of the Occupational Safety and Health Act (OSHA)."
Under subdivision C. (1)(c) of that article it is further stated:
"The construction manager assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever, including death resulting therefrom, to all persons, whether employees of the construction manager or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with the negligent or alleged negligent execution of the work."
Finally, under subdivision D of that same article, labeled "Protection of Lives and Health" it is stated
1. The construction manager shall make daily observations of the safety practices of all prime contractors and subcontractors work activities on the job site and check their compliance with municipal, state and federal safety requirements. If a safety violation is found, the construction manager shall give the prime contractor and subcontractor immediately notice of deficiency, and require correction of the safety violation before work continues. If the prime contractor or subcontractor does not correct the deficiency within three hours of notice of the construction manager, the construction manager may require the prime contractor or subcontractor to leave the job site or may authorize a separate prime contractor or subcontractor to erect or provide the required safety structures, equipment, or procedures . . .
3. The owner or owners representatives may inspect the job site at any time without notice to the construction manager. If the owner finds that the construction manager is not complying with sections A through D,[the sections of the contract that deal with accidents and their prevention] the owner may send written notice to the construction manager to correct any deficiency. If upon the inspection, the owner finds the deficiencies have not been corrected, the owner may let a separate contract to correct any deficiencies and charge back the cost of a separate contract to the construction manager at a premium rate . . .The Contract Between the Dormitory Authority and BG National
BG National was hired directly by the Dormitory Authority; and in the contract BG National is described as "contractor", and the Dormitory Authority is described as "the owner". The agreement sets forth the plumbing work that BG National was to perform on behalf of "the owner" between April 5, 2002 and January 30, 2004. The contract also sets out the rights retained by the owner and the responsibilities assumed by BG National with reference to safety and accidents:
In Article 7of the contract entitled "Inspection and Acceptance", subsection 7.01 states:
"The owner or the owner's representative shall at all times have access to the work and the contractor shall provide proper facilities for said access."
In Article 14 of the contract entitled "Protection of Rights, Persons and Property",
subsection 14.01 states:
"The contractor shall, at all times, take every precaution against injuries to persons or damage to property and for the safety of persons on or about the site or engaged in the performance of the work".
In that same article, subsection 14.05 entitled "Risks Assumed by the Contractor" states in pertinent part:
"A. The contractor solely assumes the following distinct and several risks whether said risks arise from acts or omissions, whether supervisory or otherwise, of the owner, of the client, of any subcontractor, of the third persons or from any other cause, including unforeseen obstacles and difficulties which may be encountered in the prosecution of the work, whether said risks are within or beyond the control of the contractor and whether said risks involve any legal duty, primary or otherwise, imposed upon the owner, excepting only risks which arise from faulty designs as shown by the plans and specifications or from the negligence of the owner or the owners members, officers, representatives or employees that caused the loss, damage or injuries . . . [and]
A(3) The contractor assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatsoever, including death resulting therefrom, to all persons, whether employees of the contractor or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with the execution of the work. If any person shall make said claim for any damage or injury, including death resulting therefrom, or any of alleged breach of any statutory duty or obligation on the part of the owner, the client, the owners representatives, construction manager, servants and employees, the contractor shall assume the defense and pay on the behalf of the owner . . . any and all costs, expense, damage or injury that the owner . . . may sustain as the result of any claim, provided however, the contractor shall not be obligated to indemnify the owner . . . for [its] own negligence, if any . . ." [emphasis added]
Defendants Bovis and Dormitory Authority argue that the common-law negligence claim made pursuant to Section 200 of the Labor Law should be dismissed because they exercised no direct supervision of the plaintiff's work; they did not control the plaintiff's work; they provided no tools or equipment to the plaintiff; and they had received no notice of any defect in the ladder the plaintiff was utilizing. They argue that they did not have the requisite control of the manner of construction necessary to be liable under that section merely because they had access to the worksite; had coordinated the various contractors; and could review site safety plans and practices.
In response to all of the above plaintiff concedes that the actions based on an alleged violation of Labor Law § 241(6) should be dismissed as to all defendants. However, as to the Section 200 action, plaintiff argues that it be dismissed against all of the defendants except Bovis LMB and the Dormitory Authority. Plaintiff alleges that Bovis LMB functioned as the general contractor, and pursuant to its contract with the defendant Dormitory Authority, plaintiff claims that Bovis LMB therefore had the authority to:
". . . administer the contracts of the trade contractors as to the quantity and quality of the work, coordinate the construction of the trade contractors, and implement and enforce a site safety plan. Bovis also provided the site safety orientation to each worker for plaintiff's employer, including instructions with respect to how to use ladders. Bovis and Dormitory Authority had the authority to order any ladder taken off this site and dispose of it, if it was observed to be in a broken or poor condition." [See Plaintiff's Affirmation in Opposition to Defendants' Motion for Summary Judgment, at paragraph 4]
As to the Dormitory Authority, plaintiff argues that the pursuant to Article XII, Section D.3, of the contract between the Dormitory Authority and Bovis LMB, the Dormitory Authority did not completely delegate its obligation regarding job safety, and specifically retained the right to inspect and have deficiencies corrected.
APPLICABLE LAW
Law Relating To Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. ( Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320.) Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." ( Director, Office of Workers Compensation Programs v. Greenwich Collieries, supra, 512 U.S. at 272; 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)
There is no requirement that proof be submitted in the form of affidavit, a opposed to other acceptable forms, such as deposition testimony. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001).
The court's function on this motion for summary judgment is issue finding rather than issue determination. ( Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. ( Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141.) Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. ( Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627; Sillman v. Twentieth Century Fox Film Corp., supra).
The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in ( Knepka v. Tallman, 278 AD2d 811, 718 NYS2d 541 [4th Dept. 2000]):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 669, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial (see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra).
See also, Yaziciyan v. Blancato, 267 AD2d 152, 700 NYS2d 22 [1st Dept. 1999] ["The deponent's arguably inconsistent testimony elsewhere in his deposition merely presents a credibility issue properly left for the trier of fact. "But see, Perez v. Bronx Park South Associates, 285 AD2d 402 [1st Dept. 2001], in which the Court held that the submission of a one-page affidavit from a neighbor, which was in conflict with plaintiff's deposition testimony, was insufficient to raise an issue of fact; Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439, 441 ["feigned" issues do not raise question of fact]; Singh v. Kolcaj Realty Corp, 283 AD2d 350 [1st Dept. 2001][plaintiff's expert's opinion that illegally parked car was proximate cause of accident was a legal conclusion which was of no consequence, and could not defeat defendant's motion for summary judgment].)
Labor Law Section 200Labor Law Section 200(1) states, in pertinent part:
All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons . . .
Labor Law § 200 is a codification of the common law duty of an owner or employer to provide employees with a safe place to work (see, Jock v. Fien, 80 NY2d 965, 590 NYS2d 878, 605 NE2d 365.) Liability under Labor Law § 200 cannot be imposed unless plaintiff establishes that the owner or general contractor supervised or controlled the work, performed or had actual or constructive notice of the unsafe condition which precipitated plaintiff's injury (see, Comes v. New York State Elec. Gas Corp., 82 NY2d 876, 609 NYS2d 168, 631 NE2d 110; Murray v. South End Improvement Corp., 263 AD2d 577, 578, 693 NYS2d 264 [3d Dept. 1999]; Butigian v. Port Authority of New York and New Jersey, 266 AD2d 133, 699 NYS2d 41 [1st Dept. 1999] [no evidence that owner or tenant exercised supervisory control over plaintiff's work].)
The Appellate Division, First Department, recently emphasized the requirement of direct control for a finding of liability under section 200 as follows:
"Where a claim under Labor Law § 200 is based upon alleged defects or dangers arising from a subcontractor's methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work. [citation omitted] It is well settled that an implicit precondition to th[e] duty [to maintain a safe construction site] is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition' [citation omitted]. General supervisory authority is insufficient to constitute supervisory control; it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed [citation omitted]". ( Hughes v. Tishman Construction Corp., 40 AD3d 305, 836 NYS2d 86 [1st Dept. 2007]).
Labor Law 240
Section 240 of the Labor Law states:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
When it is shown "that a violation of Section 240 was a contributing cause of [an accident and injury to a plaintiff]", absolute liability is vicariously imposed on all "contractors and owners and their agents." ( Zimmer v. Chemung County Performing Arts, Inc., 75 NY2d 513, 524, 493 NYS2d 102 (1985); Rizzuto v. L.A. Wenger Contracting Co., Inc., supra). It is equally "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law § 240 (1) and that the injured's culpability, if any, does not operate to reduce the owner/contractor's liability for failing to provide adequate safety devices." ( Stalt v. General Foods Corp., 81 NY2d 918, 920, 597 NYS2d 650). Therefore, to establish liability, the plaintiff must show that the statute was violated [in that he was not provided with the necessary equipment to provide him with proper protection] and that the violation was a proximate cause of his injury. ( Blake v. Neighborhood Houses, 1 NY3d 280). If those elements are established, contributory negligence on the part of the plaintiff will not relieve the owner or contractor of responsibility. ( Blake, at 287; Mullen v. Zoebe, 86 NY2d 135).
The core objective of Section 240 is proper protection. Therefore, a non-delegable duty is imposed upon all responsible entities to protect construction workers, not just with scaffolds, but with such "other devices . . . as to give proper protection to [such workers]"(emphasis added). When a construction worker is not provided with "proper protection" and is injured as a result of one of the hazards, which Section 240 was enacted to eradicate, the general common law defenses are not available, and absolute liability is imposed on all responsible entities.
However, it has been made abundantly clear that "section 240 does not give absolution to the plaintiff when his injury has been caused, exclusively, as a result of his own willful or intentional acts."(Emphasis supplied.) ( Tate v Clancy-Cullen Storage Co. Inc., 171 AD2d 292, 296, 575 NYS2d 832 [1st Dept. 1991].) This kind of egregious conduct has evolved into the legal "axiom" that liability will not be imposed upon owners and contractors when the worker's conduct is the " sole proximate cause" of the occurrence. ( Weininger v Hagedorn Co., 91 NY2d 958, 672NYS2d 840 [1998], reargument denied, 92 NY2d 875, 677 NYS2d 777.)
Therefore, the fact that strict liability can be imposed on owners or contractors under this section does not mean that every fall sustained by a plaintiff from a ladder or scaffold can result in recovery. Blake at 288. In affirming a directed verdict in favor of the defendant in a case where a plaintiff fell from an extension ladder due to his own failure to lock extension clips in place, the Court held:
"Given the varying meanings of strict (or absolute) liability in these different settings, it is not surprising that the concept has generated a good deal of litigation under Labor Law § 240 (1). The terms may have given rise to the mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party. That is not the law, and we have never held or suggested otherwise. As we stated in Narducci v Manhasset Bay Assoc. ( 96 NY2d 259, 267 [2001]), [n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240 (1).' . . . Put differently, an accident alone does not establish a Labor Law § 240 (1) violation or causation. This Court has repeatedly explained that strict' or absolute' liability is necessarily contingent on a violation of section 240 (1)." Blake, at 289.
In Blake, the court further upheld the jury's findings: (1) that "the ladder was so constructed and operated as to give him (plaintiff) proper protection"; and (2) that "plaintiff was the sole cause of his injury". In refutation to plaintiff's arguments, the Blake court stated:
"Plaintiff argues that he is entitled to recover in the face of a record that shows no violation and reveals that he was entirely responsible for his own injuries. There is no basis for this argument. Even when a worker is not "recalcitrant," we have held that there can be no liability under section 240 (1) when there is no violation and the worker's actions (here, his negligence) are the "sole proximate cause" of the accident. Extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed". Blake at 290.
Since Blake, the Court of Appeals has consistently held that if there is no proof of a statutory violation, and the misuse of a safety device by the plaintiff is found to be the "sole proximate cause" of an accident, a section 240 action must be dismissed. (See, Robinson v. East Medical Center, 6 NY3d 550 [complaint dismissed where plaintiff admittedly used ladder which was too short to reach ceiling where he had to work, because he was aware of availability of longer ladders]; Montgomery v. Federal Express Co., 4 NY3d 805[dismissal of plaintiff's complaint upheld where, plaintiff opted to jump 4 feet from one roof level to another, despite the availability of ladders].
In the aftermath of the Blake decision, the First Department has held that where there is a factual issue as to whether the worker's conduct was the "sole proximate cause of the accident" that issue should be decided by a jury. (See, Petrocelli v. Tishman, 19 AD3d 145 [1st Dept. 2005][due to "conflicting evidence" as to how the plaintiff fell from ladder, there was "a triable issue as to whether plaintiffs injury was attributable to a failure on defendants part to provide adequate protective devices, or was solely attributable to plaintiff's own conduct"]; see also, Robinson v. City of New York, 22 AD3d 293 [1st Dept. 2005]; Vera v. NYC Partnership Housing, 40 AD3d 472 [1st Dept. 2007].
Indemnification
Contractual indemnity provisions are quite common in construction agreements. In essence, an indemnification agreement is a promise by which one party, the indemnitor (usually a subcontractor) promises another party to the contract, the indemnitee (usually an owner or general contractor), that the indemnitor will pay specified damages arising out of certain accidents or activities. It must be noted that General Obligation Law § 5-322.1 provides that an agreement, which purports to indemnify the indemnitee against liability for damages caused or resulting in whole or part from the indemnitee's negligence, "is against public policy and is void and unenforceable" (but see infra, discussion of the doctrine of partial indemnification and Dutton v. Charles Pankow Builders, Ltd., 296 AD2d 321 [1st Dept. 2002].
General Obligations Law § 5-322.1 provides in relevant part:
"A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building * * * purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable" (emphasis added)
These agreements have spawned an abundance of litigation at both the local and appellate levels of the court; and the issues which arise from such agreements can be complex, not only because of statutory restrictions and prohibitions (General Obligations Law § 5-322.1 [void agreements]; Worker's Compensation Law § 11 [grave injury requirement]) but also because of the vague language often employed in such agreements (either inadvertently or purposely by the drafter). The ambiguous provisions are usually incorporated in the language which sets forth the contractual predicates which must be triggered before an indemnitor may be held responsible. Contractual indemnity agreements in construction cases usually fall into two broad categories i.e., those in which indemnitor agrees to provide indemnity irrespective of indemnitor's fault, and those in which the indemnitor's fault is a necessary predicate for the obligation to indemnify. Since there are many variations on the wording used to provide contractual indemnity, the court is compelled to carefully parse and scrutinize each contract provision and compare same with the fact pattern presented in each case.
Worker's Compensation Law § 11 prevents common law indemnity against employers in construction cases except when the plaintiff has suffered a "grave injury," but does not prohibit claims for contractual indemnity by contractors and owners against employers. Consequently, following the enactment of Worker's Compensation Law § 11, contractors and owners have an even greater incentive to attempt to contractually shift the risk of loss by way of an indemnity agreement which would provide coverage in those instances when no grave injury exists. These observations are made to provide a complete background for indemnity cases.
Appellate decisions can be the cause of confusion for the casual reader who does not observe that broad pronouncements made in such decisions should be restricted to the factual context of the particular case presented. (See e.g., Correia v. Professional Data Management Inc., 259 AD2d 60 [1st Dept. 1999], where the court stated that the "indemnitor's negligence . . . is irrelevant in the context of contractual indemnity . . .") This statement, although accurate in Correia, is not true for all cases. In Correia, the court was only dealing with the first category of indemnification agreements, and the language of the indemnification agreement there did not require that indemnitor's fault was a necessary condition of the agreement. Thus, as stated by the Appellate Division, without full explication, indemnitor's negligence in Correia was indeed irrelevant to its obligation to provide indemnity.
The first category of indemnity agreement includes agreements whereby the indemnitor agrees to provide indemnity for accidents "arising out of" or "in connection with" the work to be performed irrespective of any fault on the part of the indemnitor. (See, e.g., Keena v Gucci Shops, 300 AD2d 82 [1st Dept. 2002] [indemnitor agreed to indemnify owner for "all claims . . . arising in whole or in part and in any manner" from indemnitor's obligation to provide site safety protection in connection with "any work" performed by indemnitor pursuant to the subcontract].); see also, Correia, supra
"[indemnitor] shall hold [indemnitee] harmless from all liability, loss, cost or damage, damage, including attorneys' fees, from claims or injuries or death, while on or near the project, of its employees or employees of its subcontractors, or by reason of claims of any person or persons, including [indemnitee], for injuries to person or property, occasioned in whole or in part by any act or omission of [indemnitee], its representatives, employees, subcontractors or suppliers, and whether or not it is contended [indemnitee] contributed thereto in part, or was responsible there for by reason of non-delegable duty."
In such a case, because of the particular language employed in defining the scope of the agreement to indemnify, the duty to indemnify is not contingent upon proof that the indemnitor had been negligent.
Another example of the first type of indemnity agreement was present in Velez v Tishman Foley Partners 245 AD2d 155 [1st Dept. 1997]. In that case, the owner's indemnity agreement with the subcontractor provided that the duty to indemnify included "all damages of any kind or nature, including without limitation, damages to persons or property caused by or in connection with [subcontractor's] work to the extent permitted by law . . . however caused and of whatever nature, arising directly or indirectly from the acts or omissions of [subcontractor], its agents, employees, vendors or lower-tier subcontractors and their agents or employees, in the performance of the work under this Subcontract". The Court held that when plaintiff's accident occurred because the cross-bracing of the hoist tower (which was provided by the subcontractor/indemnitee), gave way, the accident "came within the parameters of the broadly worded contractual indemnification agreement," and the indemnitee was entitled to recover irrespective of whether or not the indemnitor was negligent.
A reader must distinguish and be careful not to apply the literal language of Corrreia v. Professional Data Management, Inc, supra and other appellate cases which only apply to the first category of cases. As stated above Correia states in broad terms, "it is the indemnitor's negligence that is irrelevant in the context of contractual indemnity, while the negligence of the indemnitee . . . is critical, and if established, would run afoul of General Obligations § 5-322.1". [emphasis added]. The reader, therefore, must be careful not to apply that language to the second category of cases in which the indemnity agreement does in fact require negligence on the part of the indemnitor as a triggering event.
Not every indemnity agreement uses the same language, or requires the same factual predicates, in order to trigger the duty to indemnify. A good example of the second category of cases is Keohane, infra, where the indemnity agreement between general contractor and a subcontractor required the subcontractor to indemnify the general contractor against all claims arising out of the subcontractor's work "only to the extent caused in whole or in part by negligent acts or omissions of [the subcontractor]. . . ." [emphasis added]. In Keohane, the plaintiff, a laborer on a construction project employed by the subcontractor-indemnitor, fell from a scaffold when a metal brace, which he was holding to support himself while descending, broke free from the scaffold. The scaffold had not been erected by the plaintiff's employer, the subcontractor-indemnitor. The general contractor sought summary judgment on its third-party claim against the subcontractor-indemnitor for contractual indemnification. The motion was denied, as the subcontractor-indemnitor's negligence was not established. Keohane v Littlepark House Corp., 290 AD2d 382 [1st Dept. 2002].
Trial courts are therefore constrained to carefully parse the particular language of the indemnity agreement to determine both compliance with General Obligation Law § 5-322.1, as well as the scope of the indemnitor's contractual duty which defines the triggering factors which will obligate the indemnitor to provide indemnity. Once it is determined that an agreement to indemnify has been triggered, the inquiry shifts from the indemnitor to the indemnitee. If the obligation to indemnify has been triggered, it is then necessary to determine if the indemnitee was or was not negligent (or if an issue of fact as to the indemnitee's negligence exists). If the indemnitee has not been negligent, and the other contractual conditions are satisfied, the indemnitee is entitled to full indemnification under the contract.
Where an indemnitee has been negligent, indemnitee may be entitled to "partial indemnification". It must be noted that a non-negligent indemnitee may recover fully even if the agreement's language is overly-expansive and appears to violate General Obligations Law § 5-322.1, in that it purports to indemnify the indemnitee for its own negligence. Some agreements which appear to provide indemnification for an indemnitee's own negligence in violation of General Obligations Law § 5-322.1, have been held not to be void, and are stated to be enforceable in whole or in part. See e.g., Dutton v. Charles Pankow Builders, Ltd, supra; Brown v. Two Exch. Plaza Partners, 76 NY2d 172, 556 N.Y.S.2 992 [1990]; and the discussion of partial indemnification, infra.
Partial Indemnification
Partial indemnification was mentioned and left open by the Court of Appeals in Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., ( 89 N.Y2d 786, 658 NYS2d 903). It is thus still an unsettled issue although it has been recognized as a valid doctrine by the First Department ( Dutton v. Charles Pankow Builders Ltd, supra). Under this doctrine, an indemnitee, despite its own negligence, and the mandate of General Obligations Law § 5-322.1, is entitled to be reimbursed by the indemnitor for that portion of the fault allocated by a jury to the fault of indemnitor or others.
For example, when a broadly worded indemnification agreement exists and the issue of fault has been presented to the jury and the indemnitee is found by the jury to have been 40% at fault for the happening of an accident, the indemnitee (including a plaintiff's employer) will seek to have the indemnitor pay the 60% not attributable to the negligence of the indemnitee. In effect, this form of "partial indemnity" would constitute a contract-based form of contribution, which would permit recovery even against the plaintiff's employer under the contractual indemnity exception to Workers' Compensation Law § 11. There is considerable confusion as to whether partial indemnity is a valid doctrine.(Compare Cohen and Sokoloff, "Partial Indemnity — Alive and Well," N.Y.L.J., November 19, 2004, at 4, col. 4, with DeSantis, "Indemnification Update," October 21, 2004, at 4, col. 4. As stated above, the issue of the validity of the doctrine was left open in Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., ( 89 NY2d 786, 658 NYS2d 903, 680 NE2d 1200). In Itri, the contract of indemnity contemplated full, but not partial, indemnity. However, partial indemnity was recognized by the First Department in Dutton v. Charles Pankow Builders, Ltd,., supra, which stated:
"Insofar as pertinent, the challenged indemnification clause provides that `to the fullest extent permitted by applicable law,' the subcontractor will indemnify the general contractor for all liabilities arising out of personal injuries sustained in connection with the subcontractor's work `regardless of whether [the general contractor is] partially negligent . . . excluding only liability created by the [general contractor's] sole and exclusive negligence.' We find that the clause calls for partial, not full, indemnification of the general contractor for personal injuries partially caused by its negligence, and is therefore enforceable. We reach this conclusion in view of the phrases limiting the subcontractor's obligation to that permitted by law (see, 89 NY2d at 795) and excluding liability created by the general contractor's sole and exclusive negligence. [Emphasis added]
The First Department adhered to the Dutton rationale in Jackson v. City of New York, 38 AD3d 324 [1st Dept. 2007]. In addition, the concept of "partial indemnification" has been recognized and adopted by the Appellate Division, Second Department.( Lesisz v. Salvation Army, 40 AD3d 1050 [2d Dept. 2007] and Balladares v. Southgate Owners Corp., 40 AD3d 667 [2d Dept. 2007][the language of the contract, although seemingly providing full indemnification to the owner, limited that indemnification to "the fullest extent permitted by law"].
It is to be noted that none of the above decisions from the First and Second Departments have been appealed; and though they are currently binding on lower courts (See, Mountain View Coach Lines v. Storms, 102 AD2d 663 [2d Dept. 1984]), the question was expressly left open by the Court of Appeals in Itri Brick and Concrete Corp., supra . DISCUSSION AND CONCLUSION
The motions to dismiss against all defendants as to the action which alleges a violation of Labor Law § 241(6) is granted, without opposition.
The motion to dismiss against all defendants, except Bovis LMB and the Dormitory Authority, as to the action which alleges a violation of Labor Law § 200, is also granted without opposition. As to Bovis LMB and the Dormitory Authority the motion is denied, since, under the language of their contract they entered into together, each said defendant retained sufficient supervisory authority so as to present a question of fact as to whether either or both defendants violated § 200 of the Labor Law.
The motion by defendants Bovis LMB and the Dormitory Authority for contractual indemnification against defendant BG National is granted without opposition; except as to any negligence which may have been committed by said defendants. (See, Dutton v. Charles Pankow Builders, Ltd, supra .)
As to the action based on Labor Law § 240 (1) the motion is denied since a question of fact exists as to the manner in which the plaintiff sustained the injury and as to whether the ladder was an adequate safety device. A jury could find that plaintiff was provided with "proper protection" and that he was injured solely due to his own voluntary act of jumping from the third step of an adequate ladder. In other words his actions could be found by a jury to be the sole proximate cause of the accident.
This constitutes the decision and order of the court.