Labor Law Pointers
Volume I, No. 3
Wednesday, January 4, 2012
A Monthly Electronic Newsletter Addressing
New York State Labor Law
Decisions and Trends
From the Editor:
We have all survived the holiday season around here and are back, nose to the grindstone, analyzing Labor Law cases for our own enjoyment (both personal and professional), and in an attempt to disseminate our take on these new cases to all of you.
I hope each of you had an enjoyable holiday, celebrating in whatever fashion suits your fancy. That would include, of course, those of you who choose to celebrate with the traditional airing of grievances and feats of strength made famous by Frank Costanza.
I would like to welcome our new subscribers this month and hope that you are able to find something enlightening and useful in this and every issue. I was once told that if I was able to find, retain and use one bit of practical and useful information from a seminar I attended, or provide one to each attendee when I was speaking, that it was a good day. I always thought that was setting the bar a bit low for those where I attended and a bit high for those where I presented. That said, I hope we are providing both useful information and practical tips which will help all of you in defending Labor Law cases.
For our third issue in a row we are able to lead off with a Court of Appeals decision. While not as large a departure as in the past two issues, it is none the less an important case.
A common theme through the cases analyzed below seems to be the need to establish the interrelationship between the safety device being used, misused or not used, and the task the worker was assigned to accomplish. In Ortiz and Charney below, the court did not grant Summary Judgment to either party, as neither had provided evidence that the task undertaken by the plaintiff created a risk which should or could be addressed with the use of a safety device enumerated in Labor Law § 240(1).
I hope you enjoy this issue. As always, feel free to call or email with any questions. I really do like talking to people about Labor Law, it seems to have become a bit of an obsession. As the Doobie Brothers once said “What were once vices are now habits.” I do not think they ever in their wildest dreams would have imagined that anyone would apply that album title to an area of the law but for me, and I imagine for some of you, it fits.
As always, if you intend to print this newsletter to read it please print the attached version as it will print better for you. I include the entire newsletter in the email as several of you have indicated that it is easier to read in this format on your hand held devices but for those of you who like to print and read from paper, the attachment works much better. Again, if you want to distribute to anyone who you think would enjoy reading the issue feel free, that is why we send it out. Anyone wishing to subscribe just send me an email at [email protected] and I will gladly add you to the subscription list.
Happy New Year to all and I will be back in February.
David
David R. Adams
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8998
Fax: 716.855.0874
Email: [email protected]
H&F Website: www.hurwitzfine.com
Labor Law Pointers is published the first Wednesday of each month. If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please send an e-mail to [email protected] or call the Editor/Labor Law Team Leader David R. Adams directly at (716) 849-8900.
Labor Law Section 240(1)
by: David R. Adams
(716) 849-8998
[email protected]
12/20/2011 Ortiz v Varsity Holdings
Court of Appeals
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09161.htm
Plaintiff was doing demolition work and, along with co-workers, putting debris into a dumpster. When the dumpster became full the plaintiff and his co-workers climbed up onto the dumpster via the attached ladder and began to rearrange the debris in the dumpster to make more room. As plaintiff stood on the top of the dumpster, with either one or both feet on the top of the dumpster, a ledge approximately eight inches wide, he lost his balance and fell to the ground about six feet below. Per the plaintiff’s testimony, he was instructed to undertake this task and that the only way to do it was to stand on the ledge while putting heavy debris into the open areas of the dumpster.
The trial court granted defendant’s motion for Summary Judgment and the court below (Second Department) affirmed but granted plaintiff leave to appeal to the Court of Appeals. The Court of Appeals modified, finding a question of fact as to the defendant’s motion for Summary Judgment and the plaintiff’s cross-motion for Summary Judgment.
The defendant argued that the type of risk associated with loading a dumpster is not the type of elevation risk that the safety devices listed in Section 240(1) protect against. Defendant proposed that the risks associated with loading a dumpster are akin to the risks associated with descending from a flatbed trailer or similar surface, a four- to five-foot descent, which do not create the type of elevation associated risk that triggers the protections afforded to workers in Labor Law Section 240(1). The plaintiff argued that, in fact, it did.
The Court unanimously held that, based on the fact available for review, a question of fact existed as to whether the task plaintiff was expected to perform was the type of elevation risk that the safety devices listed in Labor Law § 240(1) protect workers from.
In language we are all familiar with from Rodriguez, the Court reaffirms that in deciding these cases “the practical differences between the usual and ordinary dangers of a construction site, and ...the extraordinary elevation risks envisioned by Labor Law Section 240(1)” must be taken into account.” Thus, the Court ruled, while a worker is expected to protect himself while stepping down from a flatbed truck, the instant case is distinguishable in that the task here required him to stand on the lip of the dumpster which was only eight inches wide and six feet off the ground, there was no evidence provided by the defendant that it was necessary for the plaintiff to assume this position to accomplish the task, and that no safety device of the kind enumerated in 240(1) would have prevented the fall. Thus, the Court held, they cannot say, as a matter of law, that equipment of the kind enumerated in Section 240(1) was not necessary to guard the plaintiff from the risk of falling.
The Court, in addressing the plaintiff’s Summary Judgment motion, held that the plaintiff had not established that in order to carry out the task assigned to him it was necessary for him to stand on the lip of the dumpster and that there is a safety device of the kind enumerated in Section 240(1) which could have prevented the fall. The failure of the plaintiff to provide such evidence created a question of fact as to his Summary Judgment motion.
The Court unanimously found, viewing the proof in the light most favorable to the non-moving party in each instance, that neither party had established their right to Summary Judgment and upheld the denial of the plaintiff’s Summary Judgment motion and modified to find a question of fact as to the defendant’s Summary Judgment motion.
PRACTICE POINT: This case points out the necessity of all parties to have admissible evidence linking the task being performed by the plaintiff to a safety devise enumerated in Section 240(1). Absent such proof in a case where there is any question of the necessity of a safety device, it seems the best the moving party can hope for is a question of fact.
12/20/2011 Melchor v Singh
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09287.htm
Plaintiff, while laying bricks under an air conditioner, fell from a ladder and was injured. The extension ladder the plaintiff was standing on had “old and worn feet”, was not secured, no one was holding the ladder, and the plaintiff had placed blocks at the feet to prevent it from moving. The bottom of the ladder then slid away from the house and the plaintiff was caused to fall. The accident was not witnessed. The trial court denied plaintiff’s Summary Judgment motion, finding questions of fact as to whether the plaintiff fell from the ladder and how he fell, if indeed he fell.
The Second Department wrote, in a reiteration of the current status of the case law, “to establish liability under Labor Law § 240(1), a plaintiff must demonstrate that the defendants violated the statute and that this violation was a proximate cause of his injuries. If the plaintiff's conduct was the sole proximate cause of his injuries, liability under Labor Law § 240(1) does not attach. Where a violation of Labor Law § 240(1) is a proximate cause of an accident, the plaintiff's conduct, of necessity, cannot be deemed the sole proximate cause.”
This is important as the cases have uniformly, over the past several years during the rise of the sole proximate cause defense, held that even where the plaintiff places the ladder, that if the ladder is not properly placed it is a violation of the Labor Law and, thus, nothing the plaintiff did could be considered the sole proximate cause and the violation must be, as a matter of law, a proximate cause of the accident. Thus, nothing else, including the plaintiff’s actions, could ever be considered the sole proximate cause of the accident.
This would seem to be circular logic, as it generally the plaintiff who improperly placed the ladder in the first instance. This point would seem to me made taking a line from Blake, 1 NY3d at 290, cited by the Court in this decision, “Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation”. The question is repeatedly asked of me by clients and carriers as to how these seemingly opposite statements can be read together as establishing liability under 240(1); where the plaintiff did, in fact, place the ladder, how is it that the plaintiff is not solely to blame for his own injury when he was the one who placed the ladder?
The answer, which I have argued against several times, seems to be that no matter who placed the ladder, the fact that it was misplaced in the first instance stops any further inquiry as to how or why it was misplaced and liability is established as long as it was this misplacement of the ladder which caused the ladder to shift or move causing the plaintiff to fall. This has been the result in cases unlike this case where the ladder was not defective in any way and it simply shifted causing the plaintiff to fall.
The facts of this case made it relatively easy for the Second Department to rule in plaintiff’s favor, as he claims to have informed his employer of the issues with the ladder, asked for someone to hold the ladder, and asked for sand bags to secure the bottom of the ladder. None of these requests resulted in any assistance being given to the plaintiff.
Defendant attempted to argue that an un-witnessed accident created questions of fact as to the manner in which the plaintiff was injured and, thus, created a question of fact precluding the award of Summary Judgment to the plaintiff. The Court held that this does not, on its own, preclude the awarding of Summary Judgment to the plaintiff and that the defendant must have more than speculation as to how the accident occurred to prevent the award of Summary Judgment to the plaintiff. I have been doing this long enough to remember when that argument would have been successful, but it has not worked for many years.
PRACTICE POINT: It seems that a large percentage of the Labor Law cases which come across my desk are falls from ladders. In these cases, it is important initially to establish that the ladder itself was not defective, and then to move on to the exact manner in which the plaintiff fell from the ladder. Obtaining the ladder or at least photos of the ladder is a good practice. Careful examination of the plaintiff during depositions as to the exact cause of the plaintiff falling from the ladder is also crucial to establishing a sole proximate cause defense.
12/23/2011 Kirbis v LP Ciminelli
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2011/2011_09480.htm
This case from the Fourth Department also addresses a situation where a plaintiff falls from a ladder. Plaintiff was standing on a six-foot step ladder from which he fell. Plaintiff claimed that the ladder bucked or twisted causing him to fall. There was no claim in this case that the ladder was not structurally sound. The Court held that "evidence that the ladder was structurally sound and not defective is not relevant on the issue of whether it was properly placed . . ., and defendant's contention that plaintiff fell because [he may have misused the ladder] is based upon mere conjecture and thus is insufficient to defeat plaintiff['s] motion".
The Court rules that a structurally sound ladder which shifts causing the plaintiff to fall must have done so due to improper placement, violating 240(1) and thus eliminating the possibility that plaintiff’s actions could have been the sole proximate cause of the accident.
Again, here the Court dismissed the argument that Summary Judgment was not appropriate as the accident was un-witnessed. Additionally the defendant argued that as discovery was not yet complete that the Summary Judgment motion was premature. The court held that to oppose a Summary Judgment motion claiming that further discovery is necessary, the defendant must have more than speculation as to what may be discovered and, as stated by the court, that defendant must establish that “facts essential to justify opposition to the motion may exist but cannot then be stated.”
12/22/2011 Gatto v Clifton Park
Appellate Division, Third Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09240.htm
Plaintiff was taping drywall seams on a construction project when one of the stilts he was using to reach the nine-foot ceiling failed due to a bolt breaking, causing him to fall and sustain injury. Plaintiff, as well as other witnesses, agreed that stilts of the sort utilized by plaintiff were commonly used by tapers, and that the stilts were “ideal,” “typical” and “appropriate” for the task undertaken by plaintiff. All also agreed that the plaintiff was using the appropriate safety device to do the task he was assigned.
In this case, the Third Department affirmed the ruling of the trial court below that there was a violation of 240(1) based on the failure of the safety device, the stilt which broke, and that, as there was a violation of the Labor Law, no action of the plaintiff could therefore be the sole proximate cause of the accident.
PRACTICE POINT: Where a safety device fails, even when it is the appropriate safety device, there is established a violation of the Labor Law precluding the sole proximate cause defense.
12/6/2011 Charney v LeChase
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09365.htm
Plaintiff was employed demolishing the Finger Lakes Arts Center as part of a crew removing a steel canopy over the stage. They were cutting the steel beams and attaching a sling to the steel to be lifted and removed by a crane. The plan was to cut part way through the beam, attach the sling and attach the sling to the crane. Plaintiff had cut part way through the beam, attached the sling and was waiting for the crane when he returned to the floor of the stage to retrieve tools while waiting for the crane. Plaintiff heard noise above and, realizing that the steel beam was going to fall, jumped off the stage about four feet to avoid being struck by the falling beam. Plaintiff was injured when he landed in a pile of debris.
The trial court denied plaintiff’s motion for Summary Judgment and granted defendant’s Summary Judgment motions dismissing the complaint. The case was appealed to the Fourth Department. The Fourth Department held that the trial court properly denied plaintiff’s Summary Judgment motion, but that Defendant’s Summary Judgment motion should not have been granted. While the Court agrees that a plaintiff working on a stable surface only four feet off the ground does not create a situation requiring the use of safety devices, it finds that the defendants also potentially face liability for the collapse of the structural steel canopy, to the extent the accident causing plaintiff’s injuries was elevation related.
The court was not, on the record, able to determine if the cause of the collapse of the canopy was a failure to have in place an appropriate safety device like those enumerated in 240(1), or if the cause of the beam falling was not related to any failure to use those safety devices.
PRACTICE POINT: Again, the importance to the moving party of associating, or disassociating, the safety devices enumerated in Labor Law § 240(1) to the accident and injury cannot be over emphasized. The use of an expert to establish this nexus is generally money well spent.
12/30/2011 Baker v City of Buffalo
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09741.htm
In another case addressing the “usual and ordinary” dangers faced by workers on construction sites, the plaintiff was climbing through a hole in the wall when his pants became caught, causing him to fall from the opening to the floor causing injury. The court held that the act of climbing through a hole to gain access to a room where construction was being done was “not the extraordinary elevation risks envisioned by Labor Law § 240 (1)”.
PRACTICE POINT: It is important to note that there is no mention of the distance the plaintiff fell from the hole in the wall and I would not count on the same outcome if the hole in the wall was 20 feet in the air, as that may well be exactly the type of elevation related risk the court is looking for.
12/30/2011 DiPalma v State of New York
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2011/2011_09724.htm
Plaintiff was injured when a skid box which was filled with concrete debris slid off the forks of a lift truck, fell about one to two feet and struck the plaintiff. The case was bifurcated and tried on liability only and a verdict was reached for the plaintiff regarding liability under Labor Law § 240(1).
The defendant argued, among other issues, that the height differential of one to two feet does not create liability under 240(1).
The Fourth Department, citing the recent Court of Appeals cases of Wilinski (a pipe tipping over from the same base level as the plaintiff, as reported on last month in this newsletter http://www.nycourts.gov/reporter/3dseries/2011/2011_07477.htm) and Runner (plaintiff lowering a spool of wire down 4 steps with a rope, http://www.nycourts.gov/reporter/3dseries/2009/2009_09310.htm), held that in spite of the one to two foot height differential, the fact that the skid box was heavy and thus the potential harm it could cause, that the height differential was not de minimis.
The recent cases, especially Wilinski, have eliminated any minimum elevation differential necessary to create liability when a falling object is involved.
Labor Law Section 241(6)
by: Jennifer A. Ehman
(716) 849-8964
[email protected]
12/30/11 DiPalma v. State of New York
Appellate Division, Fourth Department
http://www.nycourts.gov/reporter/3dseries/2011/2011_09724.htm
Plaintiff was injured when a “skid box” containing concrete debris slid off a forklift and struck him. Plaintiff alleged a violation of 12 NYCRR 23-2.1 (b), pursuant to which “[d]ebris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.”
In affirming the Court of Claims decision that defendant was liable under 241(6), the Fourth Department held that plaintiff was injured while in the process of removing debris and, contrary to defendant’s contention, it was not necessary for plaintiff to have been struck by debris for the regulation to apply. With that said, according to the Court, there was still evidence that plaintiff was in fact struck by debris that fell out of the skid box, in addition to being struck by the skid box itself.
Take Away: The interesting part of this decision is the Court’s determination that the regulation can be violated even if the plaintiff was not actually struck by debris.
12/30/11 Byrd v. Roneker
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09716.htm
Plaintiff fell from a ladder while cutting a tree limb at a single-family home owned by defendant. Defendant hired a contractor to repair the roof and the contractor, in turn, hired plaintiff. Labor Law § 241(6) exempts from liability owners of one- and two-family dwellings who contract for but do not direct or control the work.
In reversing the trial court, and dismissing plaintiff’s complaint, the Fourth Department held that direction or control is not present if the owner informs the worker what work should be performed, but there is direction and control if the owner specifies how the work should be performed. Here, while there was evidence defendant instructed plaintiff to cut down the tree limb, there was no proof that defendant told him how to perform the work or provided him any tools or equipment. Further, the Court held that the defendant’s instruction that plaintiff cut the limb at the base was not sufficient control. According to the Court, it was no different than telling an electrician where outlets should be installed without telling him how to install them.
Also, plaintiff failed to establish a commercial purpose. Merely because defendant was getting the roof repaired on the advice of a realtor who intended to list the property, it did not make the work a commercial purpose.
12/30/11 Baker v. City of Buffalo
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09741.htm
Plaintiff was injured when he climbed through an opening that had been cut through a wall for the purpose of gaining access to the room where he was working. Plaintiff's pant leg snagged on rebar, mesh or jagged concrete protruding from the ledge of the opening, causing him to jerk backward and fall to the floor. Interestingly, the court held that plaintiff’s fall was not caused by a tripping hazard (a violation of 12 NYCRR 23-1.7(e)(1) and (2)); however, it was possible that the fall was caused by a violation of 12 NYCRR 23-1.7(f). This provision applies to vertical passages and provides that “[s]tairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation, in which case ladders or other safe means of access shall be provided.”
TAKE AWAY: It is hard to tell from the facts provided exactly what type of work the plaintiff was performing that was above or below ground, as required by the regulation.
12/23/11 Charney v. LeChase Construction
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09365.htm
Where plaintiff was injured when he jumped into a pile of debris while escaping from a collapsing structural steel canopy, the court found a trial issue of fact as to whether 12 NYCRR 23-3.3 was violated. This provision requires that steel construction shall be demolished column length by column length and floor by floor.
12/20/11 Pacheco v. Halstead Communications, Ltd.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09294.htm
Plaintiff fell from a ladder while installing a satellite dish on the defendant’s home. The court held that plaintiff failed to raise a triable issue of fact that defendant’s home was not a one- or two-family dwelling or that it was used for a commercial purpose.
12/20/11 Melchor v. Singh
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09287.htm
In another ladder case, plaintiff fell while laying bricks. Plaintiff testified that the ladder had old and worn feet. The ladder was not secured and no one was holding it. Also, plaintiff had apparently placed small blocks at the bottom of the ladder to prevent it from moving. This was an un-witnessed accident.
In reversing the trial court and granting plaintiff Summary Judgment on Section 241(6), the court found that plaintiff’s testimony established violations of 12 NYCRR 23-1.21(b)(3)(iv) [a ladder shall not be used if it has any flaw or defect of material that may cause ladder failure]; 12 NYCRR 23-1.21(b)(4)(ii) [all ladder footing shall be firm and slippery surfaces and insecure objects such bricks and boxes shall not be used as ladder footings]; and 12 NYCRR 23-1.21(b)(4)(iv) [when work is being performed on ladder rungs between 6 and 10 feet, a leaning ladder shall be held in place by a person stationed at the foot of ladder, unless the upper end is secured].
Labor Law Section 200 and Common Law Negligence
by: V. Christopher Potenza
(716) 849-8933
[email protected]
With 2011 now behind us, it appears that everything old is new again, at least as it pertains to Labor Law § 200. In fact, a whole list of clichés can be used to describe 2011’s final Labor Law § 200 recap. The more things change, the more they stay the same… It’s déjà vu all over again…. meet the new boss, same as the old boss….
Labor Law § 200 codifies the obligation of owners and contractors to provide workers with a safe place to work. There is a two-prong analysis to establish a claim for negligence/Labor Law § 200, as a plaintiff must: (1) establish that those charged with liability either created the condition or had actual or constructive notice of the unsafe condition; or (2) establish that a defendant had supervision and control over the work being performed to correct or avoid the unsafe condition.
December’s decisions do not alter this landscape at all.
12/6/11 Vella v. One Bryant Park, LLC
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08931.htm
Plaintiff fell on an allegedly defective stair during the construction of a skyscraper. Because the plaintiff, a site-safety inspector, had reported the defective stair at a safety meeting prior to his fall, the Court found an issue of fact on constructive notice and whether the owner knew or should have known of the hazard.
12/6/11 Szczepanski v. Dandrea Construction Corp.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08929.htm
Plaintiff fell from a beam while constructing a new home. The Court found an issue of fact as to whether the homeowner defendant, who was also the sole owner of the general contractor, had authority to supervise or control plaintiff’s work.
12/20/11 Pacheco v. Halstead Communications, Ltd.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09294.htm
Plaintiff fell while installing a satellite dish at a single-family home. The Labor Law § 200 claim against the homeowners was dismissed as there was no evidence the homeowners had authority to exercise supervisory control over plaintiff’s work.
12/30/11 Byrd v. Roneker
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09716.htm
A rare win in the Fourth Department for the defense, as the Court reversed the trial court and dismissed the Labor Law § 200 claim against defendant homeowner. Plaintiff fell from a ladder while cutting a tree limb at a single-family home. The Fourth Department held that the defendant homeowner established as a matter of law that he did not exercise supervisory control over plaintiff's work and that he neither created nor had actual or constructive notice of the allegedly dangerous condition that caused the accident, and plaintiff failed to raise an issue of fact.
12/30/11 Baker v. City of Buffalo
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09741.htm
Proving once again that 200 cases are quite fact specific, the Fourth Department held that although defendant general contractor established that it did not supervise or control plaintiff's work, there are triable issues of fact as to whether it had actual or constructive notice of the allegedly dangerous condition on the premises that caused plaintiff's injuries.
That’s all the 200 news that’s fit to print this month. Happy New Year!
Indemnity Issues in Labor Law
by: Steven E. Peiper
(716) 849-8995
[email protected]
12/27/11 Simone v. Liebherr Cranes, Inc.
Appellate Division, Second Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09619.htm
In this action, Beys Contracting (“Beys”) sought an award of contractual indemnification from third-party defendant Resun Leasing, Inc. (“Resun”). Resun appears to have opposed the demand by arguing that neither it, or its subcontractors, were negligent.
In affirming the trial court, the Second Department started by reviewing the language of the indemnity clause at issue. Upon review, the Court noted that Resun was obligated to indemnify Beys so long as the loss was “caused in whole or in part by any act or omission of the Subcontract.” Where there was no obligation in the contract that the acts or omissions be negligent, any argument that Resun (or its subcontractors) was free of negligence was irrelevant. Accordingly, because the incident arose from the work of Resun’s contractors, the protections of the indemnity clause were triggered.
12/23/11 Charney v. LeChase Construction
Appellate Division, Fourth Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09365.htm
As noted above, this incident arose from the collapse of a steel canopy. As part of this litigation, defendants moved for Summary Judgment against Contour Erection (“Contour”) pursuant to an indemnity clause found within the Contour contract.
In modifying the trial court’s decision, the Fourth Department notes that any provision that purports to provide indemnification for a negligent party is void by operation of General Obligations Law § 5-322.1. The Court also notes, however, that an indemnity clause can be saved from the reaches of the GOL by simply inserting the term of art “to the fullest extent permitted by law.” The inclusion of such language then requires the Court (or the jury) to make a determination as to the active negligence of the purported indemnitee. If negligence is found, then no indemnity right will exist for that portion of liability attributable to the negligent conduct of the party seeking indemnification.
12/20/11 Great American Insurance Companies v. Bearcat Financial Services, Inc.
Appellate Division, First Department
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09168.htm
Great American commenced this action, in part, against third-party defendant Hayes as a result of Hayes’ own wrongdoing. In response, Hayes commenced a third-party action seeking common law indemnification against another party, Dresdner. Dresdner moved to dismiss the common law claim on the basis that the main-party action filed by Great American only sought to recover for actions committed solely by Hayes. Accordingly, where the only basis for liability against Hayes was his own liability, it was impossible for a claim of common law indemnification to ripen.
Interesting enough standing alone, but the fact that Hayes’ counsel was actually sanctioned as a result of bringing the third-party action makes this decision especially noteworthy. In the opinion of the trial court, and affirmed by the First Department, Hayes’ third-party action seeking a remedy that was impossible to obtain was patently frivolous.
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Labor Law Pointers
Editor
David R. Adams
Associate Editor
V. Christopher Potenza
Associate Editor
Steven E. Peiper
Associate Editor
Jennifer A. Ehman
Labor Law Team
David R. Adams, Team Leader
[email protected]
Dan D. Kohane
[email protected]
Michael F. Perley
[email protected]
V. Christopher Potenza
[email protected]
Steven E. Peiper
[email protected]
Cassandra A. Kazukenus
[email protected]
Jennifer A. Ehman
[email protected]
Hurwitz & Fine, P.C.
424 Main Street
Suite 1300 Liberty Building
Buffalo, New York 14202
Phone: 716.849.8900
Fax: 716.855.0874
www.hurwitzfine.com
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