Munoz v JDS Seagirt LLC, 2024 NY Slip Op 02779 [227 AD3d 547]
May 21, 2024
Appellate Division, First Department
[*1]
Jose Guillermo Munoz, Respondent,
v
JDS Seagirt LLC et al., Defendants, and Sampogna Group Inc., Appellant. JDS Seagirt LLC et al., Third-Party Plaintiffs-Respondents, et al., Plaintiffs, v RCI PLBG, Inc., et al., Third-Party Defendants-Appellants. (And a Second Third-Party Action.)
Gallo Vitucci Klar LLP, New York (C. Briggs Johnson of counsel), for Sampogna Group Inc., appellant.
Rawle & Henderson, LLP, New York (Richard Polner of counsel), for RCI PLBG, Inc. and another, appellants.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York (Christopher J. Donadio of counsel), for Jose Guillermo Munoz, respondent.
Kennedys CMK LLP, New York (Nitin Sain of counsel), for JDS Seagirt LLC and others, respondents.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered November 3, 2022, which, to the extent appealed from, denied so much of defendant Sampogna Group Inc.’s (Sampogna) motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it and dismissing all cross-claims as against it, and denied so much of the motion of third-party defendants RCI PLBG, Inc. and RCI Plumbing Corp. (RCI defendants) for summary judgment dismissing defendants/third party plaintiffs JDS Seagirt, LLC, JDS Development LLC and JDS Construction Group’s (JDS defendants) third-party claims against them for contractual indemnification, unanimously affirmed, without costs.
While working as a plumbing mechanic at a home construction site in Far Rockaway, plaintiff stepped on unsecured metal Q-decking that had been placed over an open gap. When the Q-decking gave way plaintiff fell six to ten feet to the ground below. The property was owned and the construction overseen by the JDS defendants. Sampogna was a concrete/masonry subcontractor on the project. RCI entered into a plumbing contract with the JDS defendants, and then subcontracted the work to plaintiff’s employer, nonparty Pro Star Heating & Plumbing.
Supreme Court correctly denied Sampogna’s summary judgment motion on plaintiff’s Labor Law § 200 and common-law negligence claims. While it is unclear which entity placed the unsecured Q-decking, the record indicates Sampogna’s concrete workers were the most recent trade working in the area in question, that Sampogna workers had a duty to employ fall protection methods in connection with their work, and that Sampogna utilized Q-decking in performing its concrete work.
Sampogna failed to demonstrate that it owed no duty to provide contractual indemnity to the JDS defendants. Triable issues exist as to whether plaintiff’s accident arose in whole or in part from Sampogna’s work, from the negligence of the JDS defendants’ laborers and carpenters in the provision of fall protection, or from some other cause. An owner and/or general contractor may seek contractual indemnification from a subcontractor although it may have been partly at fault for an accident as long as the indemnification provision at issue is prefaced by language specifying that the duty extends “to the fullest extent permitted by law,” as in this case, thereby precluding any potential violation of General Obligations Law § 5-322.1 ( Brooks v Judlau Contr., Inc. , 11 NY3d 204 , 210 [2008]; see also Port Parties, Ltd. v Merchandise Mart Props., Inc. , 102 AD3d 539 , 540-541 [1st Dept 2013]).
Similar issues of fact defeat the RCI defendants’ motion for summary judgment dismissing the JDS defendants’ cross claim for contractual indemnification. The RCI defendants concede that plaintiff was engaged in the plumbing work that is the subject of the RCI contract, thereby triggering the indemnity clause. As stated above, there are triable issues of fact concerning whether any [*2] negligence of the JDS defendants was a proximate cause of plaintiff’s injuries, and the RCI contract contains the language necessary to pass muster under General Obligations Law § 5-322.1.
We have considered the remaining arguments and find them unavailing. Concur—Manzanet-Daniels, J.P., Moulton, Mendez, Rosado, O’Neill Levy, JJ.
[Prior Case History: 76 Misc 3d 1230(A), 2022 NY Slip Op 51086(U).].