Izquierdo v. Amsterdam Avenue Redevelopment Associates, LLC
Attorneys and Parties
Brief Summary
Construction site safety and contractual indemnification arising from a ladder fall on a redevelopment project.
The trial court denied Amsterdam and Pavarini unconditional contractual indemnification against ECDNY and declined to dismiss plaintiff’s Labor Law § 241(6) claim; it granted ECDNY’s motion to compel litigation-funding discovery and later ordered in camera review upon reargument.
The appellate court dismissed portions of the Labor Law § 241(6) claim predicated on 12 NYCRR 23-1.7(d), 23-1.7(e), 23-1.21(b)(3)(iv), and 23-1.21(b)(4)(iv), and granted unconditional contractual indemnification to Amsterdam and Pavarini; appeals regarding discovery orders were dismissed as moot or nonappealable; the court declined plaintiff’s request to award him summary judgment on Labor Law § 240(1) under CPLR 3212(b) [permits searching the record and granting summary judgment to a nonmovant].
Certain Industrial Code provisions do not apply because a ladder is not a floor, passageway, or platform, and some subsections were abandoned; the subcontract’s broad indemnity applied and Amsterdam/Pavarini showed no active negligence where ECDNY controlled the means and methods; conflicting incident reports created issues of fact barring plaintiff’s request for summary judgment under § 240(1); discovery rulings for in camera review do not affect a substantial right under CPLR 5701(a)(2)(v) [appeal as of right lies only from orders affecting a substantial right].
Background
Plaintiff Anthony J. Izquierdo, employed by ECD NY, Inc. (ECDNY), fell while using an extension ladder that linked two floor levels at a construction project owned by Amsterdam Avenue Redevelopment Associates, LLC and managed by general contractor Pavarini McGovern, LLC. Plaintiff testified the ladder moved beneath him; incident reports by his foreman and the GC’s safety manager recorded a different cause (facing away while slipping). Plaintiff asserted Labor Law § 240(1) and § 241(6) claims, among others. The § 241(6) claim relied on multiple Industrial Code provisions, including 12 NYCRR 23-1.5(c)(3) [equipment must be kept “sound and operable”], 23-1.7(f) [provides for safe means of access between working levels], 23-1.21(b)(4)(i) [portable ladder used as regular means of access must be secured or fastened], 23-1.7(d) and (e) [slipping/tripping hazards on floors, passageways, walkways, platforms], and 23-1.21(b)(3)(iv) and (b)(4)(iv). Amsterdam and Pavarini sought dismissal of § 241(6) and unconditional contractual indemnification from ECDNY under a broad subcontract indemnity clause.
Lower Court Decision
The Supreme Court, New York County, denied Amsterdam and Pavarini summary judgment dismissing the § 241(6) claim and denied their request for unconditional contractual indemnification (though it granted conditional indemnification). It granted ECDNY’s motion to compel plaintiff’s litigation-funding documents and denied a protective order; on reargument, it directed in camera review of certain funding materials.
Appellate Division Reversal
The Appellate Division modified to: (1) dismiss the § 241(6) claim insofar as predicated on 12 NYCRR 23-1.7(d) and (e) and 23-1.21(b)(3)(iv) and (b)(4)(iv), while allowing it to proceed based on 23-1.5(c)(3), 23-1.7(f), and 23-1.21(b)(4)(i); and (2) grant Amsterdam and Pavarini unconditional contractual indemnification from ECDNY because plaintiff’s injuries arose from ECDNY’s work, ECDNY provided instructions and equipment, and Amsterdam/Pavarini were free from active negligence. The court rejected plaintiff’s informal request to grant him summary judgment on Labor Law § 240(1) under CPLR 3212(b) due to conflicting competent evidence (incident report and foreman deposition). The appeal from the order compelling discovery was dismissed as moot in light of the later in camera order, and the appeal from the in camera order was dismissed as taken from a nonappealable order under CPLR 5701(a)(2)(v).
Legal Significance
The decision clarifies that, for ladder accidents where a ladder is used as a temporary means of access between levels, Industrial Code provisions targeting floors, passageways, and platforms (12 NYCRR 23-1.7(d), (e)) do not apply, but sections addressing ladder condition and securing (23-1.5(c)(3), 23-1.7(f), 23-1.21(b)(4)(i)) may. It reinforces that owners and general contractors may obtain unconditional contractual indemnification where a broad clause covers the accident, the employer controlled the means and methods, and the indemnitees are free from active negligence. It also underscores that orders directing in camera review of discovery are nonappealable absent impact on a substantial right.
Owners and general contractors can secure unconditional contractual indemnification when the subcontractor controlled the work and they are not actively negligent, and only those Industrial Code provisions tailored to ladder use and access will sustain a Labor Law § 241(6) claim in ladder-as-access scenarios; discovery orders for in camera review are not immediately appealable.