Luis J. Tigsilema Ichapanta v. East Side Home Stead LLC; Taconic Builders, Inc.; and JVA Industries, Inc.
Attorneys and Parties
Brief Summary
Construction site injury and contractual indemnification between a general contractor and a subcontractor during a building renovation.
The Supreme Court, Bronx County, denied Taconic Builders, Inc.'s motion for summary judgment on its cross-claim for contractual indemnification against JVA Industries, Inc.
The Appellate Division modified the order to grant Taconic conditional contractual indemnification and reimbursement of its costs, fees, and expenses; otherwise affirmed.
The subcontract’s broad indemnification clause covered claims arising out of or resulting from performance of the subcontract, plaintiff’s injury arose from JVA’s work, and JVA failed to raise a triable issue of fact. The savings clause avoided any violation of General Obligations Law § 5-322.1 [prohibits contractual indemnity in construction contracts to the extent it purports to indemnify a party for its own negligence], and there was no contention that Taconic was the sole proximate cause.
Background
Taconic, the general contractor, retained JVA as a carpenter subcontractor to convert a former commercial building into a single-family home. Plaintiff, a JVA employee, was injured on his first day while readying plywood panels on a hoist to be lifted from the ground floor to the third floor. Taconic’s superintendent stated he was on site and that JVA’s foreman, Jay Rodriguez, assigned plaintiff’s work. Plaintiff confirmed he followed instructions solely from his foreman (whose name he did not know). JVA’s accident report identified 'Jay Rodriguez' as the JVA foreman. JVA submitted no affidavit from Rodriguez or any witness with personal knowledge disputing that the foreman was JVA’s employee.
Lower Court Decision
The Supreme Court, Bronx County (Myrna Socorro, J.), denied Taconic’s motion for summary judgment on its cross-claim seeking contractual indemnification from JVA.
Appellate Division Reversal
The Appellate Division modified the order and granted Taconic conditional contractual indemnification and reimbursement for its costs, attorneys’ fees, and expenses, finding the clause applied to claims arising from performance of the subcontract and that the record showed plaintiff’s injury arose from JVA’s work. The court noted the clause’s savings language preserved enforceability under General Obligations Law § 5-322.1 and that JVA offered no competent evidence to raise a factual dispute. Authorities cited included Ramos v Ford Foundation, Devlin v AECOM, and Winkler v Halmer Intl., LLC.
Legal Significance
A general contractor can obtain conditional contractual indemnification at summary judgment where a subcontract’s broad indemnity clause applies to injuries arising from the subcontractor’s work, there is no claim the general contractor was the sole proximate cause, and the clause contains savings language consistent with General Obligations Law § 5-322.1. Subcontractors cannot defeat such motions by relying solely on a plaintiff’s inability to identify a supervisor by name absent competent contrary proof.
Broad indemnity provisions with savings clauses can support conditional contractual indemnification (including fees and expenses) at summary judgment when the injury arises from the subcontractor’s work and no evidence shows the indemnitee’s sole negligence; mere speculation or lack of name identification is insufficient to create a triable issue.