Third Party Defendant’s Summary Judgment Appeals Go Unheard

D’Angelo v. Builders Group, 845 N.Y.S.2d 814 (N.Y. App. Div. 2007)

This case involved an alleged violation of Labor Law § 240(1) and contractual indemnification.  Specifically, this decision involved an appeal brought by third-party plaintiff Builders Group from the lower court’s denial of its summary judgment motion seeking dismissal of the complaint and its cross-motion for summary judgment seeking contractual indemnification from third-party defendant Caruso Painting and Decorating Corp.

The Second Department affirmed.  With respect to plaintiff’s claim under Labor Law § 240(1), the court explained that Builders and Caruso had failed to establish that plaintiff had access to safety devices that were properly-placed and adequate.  Similarly, the court found that a triable issue of fact existed with respect to whether contractual indemnity applied.  The contractual provision at issue provided that indemnity only applied, “provided such claim, damage, loss or expense is caused in whole or in part by any act or omission of [Caruso]” and, the court held, it was unclear at this stage whether plaintiff’s injury was caused by an act or omission by Caruso.

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