First Department Affirms Summary Judgment In Favor of Defendants on Their Third-Party Indemnification Claims Against Subcontractor
published on June 08, 2010
First Department Affirms Summary Judgment In Favor of Defendants on Their Third-Party Indemnification Claims Against Subcontractor
published on June 08, 2010
In a decision dated June 8, 2010, the Appellate Division, First Department affirmed the Supreme Court’s grant of summary judgment in favor of the defendants on their third-party indemnification claims against a subcontractor. The plaintiff, who was employed by third-party defendant F&R Installers, claimed that he sustained serious personal injuries when he slipped and fell on “black ice” inside a partially enclosed bulkhead while working on the roof of the Bronx Criminal Courthouse. The defendants successfully demonstrated that the contract between Enclos, the non-party prime contractor, and F&R Installers expressly provided for the indemnification of the owner and construction manager because it incorporated by reference the terms of the contract between the owner and Enclos. The Appellate Division also found that the contract expressly provided for partial indemnification due to its inclusion of recognized savings language (“to the fullest extent permitted by law”), and thus satisfied General Obligations Law §5-322.1. Moreover, the Appellate Division found that the owner and construction manager established that no issue of fact existed as to whether they were actively negligent such that full indemnification was appropriate. The defendants showed that they did not have actual or constructive notice of the condition which caused plaintiff’s injury and they did not exercise any authority over plaintiff’s work on the morning he was injured.
Williams v. City of New York, 74 A.D.3d 479 (1st Dep’t 2010)
Partial Summary Judgment Granted Dismissing Plaintiff’s Labor Law §241(6) Cause of Action Based on Violations of Industrial Code Rules 23-1.5, 23-1.7(e) and 23-1.30
published on April 19, 2010
Partial Summary Judgment Granted Dismissing Plaintiff’s Labor Law §241(6) Cause of Action Based on Violations of Industrial Code Rules 23-1.5, 23-1.7(e) and 23-1.30
published on April 19, 2010
In a decision dated April 19, 2010, Justice Eileen A. Rakower granted the defendants partial summary judgment dismissing the plaintiff’s claim pursuant to Labor Law §241(6), which was premised on violations of Industrial Rules 23-1.5, 23-1.7(e) and 23-1.30. The plaintiff, an electrician, claimed that he sustained serious personal injuries when he tripped and fell over a two-inch lip between adjoining sections of concrete flooring. The defendants successfully demonstrated that the height differential was purposely called for in the project’s plans and specifications so that the raised floor, which would eventually become an elevator lobby, could subsequently receive finished stone or marble tiling. The Court found that Industrial Code Rule 23-1.7(e), which addresses tripping hazards, could not support the plaintiff’s claim because the lip was an integral part of the construction. Additionally, the Court also found that Industrial Code Rule 23-1.5 was too general to serve as a predicate for establishing a violation of the statute, and that the plaintiff’s own testimony regarding the lighting conditions on the floor established there was no violation of Industrial Code Rule 23-1.30 which regulates illumination.
Eimer v. 731 Commercial LLC et al., Index No. 112196/06 (N.Y. Co. Sup. Ct., April 19, 2010)
Second Department Affirms Dismissal of Plaintiff’s Remaining Cause of Action Pursuant to Labor Law §241(6) Based on Violation of Industrial Code Rule 23-1.7(e)(2)
published on February 09, 2010
Second Department Affirms Dismissal of Plaintiff’s Remaining Cause of Action Pursuant to Labor Law §241(6) Based on Violation of Industrial Code Rule 23-1.7(e)(2)
published on February 09, 2010
In a decision dated February 9, 2010, the Appellate Division, Second Department affirmed the Supreme Court’s decision dismissing the plaintiff’s remaining claim pursuant to Labor Law §241(6), which was premised on a violation of Industrial Code Rule 23-1.7(e)(2). The plaintiff claimed that he sustained serious personal injuries when he fell while retrieving materials from a box truck, when his right foot came into contact with one of the permanent L-shaped brackets that were welded to the floor of the box truck he was in at the time of his accident. In affirming the lower court’s decision, the Appellate Division found that the defendants satisfied their prima facie burden of establishing entitlement to summary judgment by demonstrating that the alleged violation of Industrial Code Rule 23-1.7(e)(2) was inapplicable because the L-shaped brackets did not constitute a “sharp projection” within the meaning of that rule and the plaintiff failed to raise a triable issue of fact in opposition.
Passaro v. 163-15 N. Flushing Corp. et al., 70 A.D.3d 795 (2d Dep’t 2010)
