Almer v Summit Glory Property LLC et al.
Attorneys and Parties
Brief Summary
Construction-accident and risk-allocation dispute arising from a worker's trip over a drag line and coiled cable during a tenant build-out project, involving claims under Labor Law § 241(6) [imposes a nondelegable duty to provide reasonable and adequate protection and safety to workers when specific Industrial Code provisions are violated], Labor Law § 200 [codifies the common-law duty to provide workers with a safe place to work], and common-law negligence, plus contractual indemnity and insurance-procurement issues among the owner, general contractor, tenant contractor, and subcontractor.
The motion court denied summary judgment to all moving parties on the worker's Labor Law and negligence claims and denied requested relief on contractual indemnity, contribution, common-law indemnity, and related breach-of-contract claims.
The Appellate Division modified by granting Linear Technologies, Inc. (Linear) conditional contractual indemnity against Tri Ram LLC doing business as Momentum Data (Momentum); dismissing Summit Glory Property LLC, Fosun Management (US) Inc., and Benchmark Builders, Inc.'s contractual indemnity claims against Momentum; granting Summit and Fosun conditional contractual indemnity against Linear; and dismissing Benchmark's contractual indemnity claim against Linear. The order was otherwise affirmed.
The record raised fact issues as to whether Momentum created the tripping hazard and whether Linear had notice and supervisory responsibility over Momentum's work, so dismissal of the Labor Law and negligence claims was improper. But the contracts controlled the indemnity issues: Momentum owed indemnity to Linear under their subcontract; Summit and Fosun were indemnitees under the Linear/Wolters Kluwer agreement because they were listed as additional insureds; Benchmark was not a named indemnitee or proven agent; and Summit, Fosun, and Benchmark were not indemnitees under the Linear/Momentum contract.
Background
Plaintiff, an apprentice electrician employed by nonparty Forest Electric, allegedly tripped over a drag line left attached to partially installed data cable that had been coiled and hung from a passageway ceiling. The accident occurred during a build-out of leased space at 28 Liberty Street in Manhattan. Summit owned the building, Fosun was affiliated with Summit, Benchmark served as general contractor, nonparty Wolters Kluwer leased the space, Linear contracted with Wolters Kluwer to install low-energy data and communications cable, and Linear subcontracted that work to Momentum. Plaintiff claimed that the drag line and cable setup created a passageway tripping hazard.
Lower Court Decision
Supreme Court, New York County, denied Linear's motion for summary judgment seeking dismissal of the Labor Law § 241(6), Labor Law § 200, and common-law negligence claims and seeking contractual indemnity relief; denied Momentum's motion for summary judgment seeking dismissal of plaintiff's claims and all cross-claims and third-party claims; and denied Summit, Fosun, and Benchmark's motion for summary judgment seeking dismissal of the Labor Law § 200 and common-law negligence claims and seeking contractual indemnity against Momentum and Linear.
Appellate Division Reversal
The Appellate Division held that summary judgment dismissing the Labor Law § 200 and common-law negligence claims was properly denied because evidence showed Momentum installed and left the drag line in a manner that could have created the tripping hazard, and Linear had contractual responsibility to perform and supervise that work without showing lack of notice. It also held that dismissal of the Labor Law § 241(6) claim was properly denied because there was evidence of possible violations of Industrial Code § 23-1.7(e)(1) [passageways and working areas must be kept free from tripping hazards] and Industrial Code § 23-2.1(a)(1) [building materials must be stored in a safe and orderly manner], and questions remained as to whether the cable and drag line were integral to the work. On indemnity, the court granted Linear conditional contractual indemnity against Momentum under their contract; dismissed Summit, Fosun, and Benchmark's contractual indemnity claims against Momentum because they were not named indemnitees there; granted Summit and Fosun conditional contractual indemnity against Linear under the Linear/Wolters Kluwer contract because they were identified as additional insureds and thus indemnitees; and dismissed Benchmark's contractual indemnity claim against Linear because Benchmark was neither named nor shown to be Summit's agent for indemnity purposes. The court also left standing the denial of summary judgment dismissing the breach-of-contract claim against Linear for failure to procure insurance.
Legal Significance
The decision reinforces that a contractor may face Labor Law § 241(6) liability when it had supervisory authority over the work that created the dangerous condition, even if it did not supervise the injured worker directly. It also underscores that contractual indemnity rights turn strictly on the contract language: courts will enforce named-indemnitee and additional-insured provisions as written, will not extend indemnity to entities not clearly identified, and will permit conditional indemnity before ultimate fault is determined when the accident arose out of the subcontracted work.
Where a subcontractor's installation work allegedly creates a tripping hazard, negligence and Labor Law claims may survive summary judgment if fact issues remain on notice, control, and Industrial Code violations. But indemnity disputes are resolved by close reading of the contracts: Linear could recover from Momentum, Summit and Fosun could recover from Linear, and Benchmark could not recover because it was not expressly covered.