O’Gorman Comments on Legal Issues in New York & Other States as to Construction Accidents & Insurance Coverage

March 6. New York. Indemnification. Although Entity Not Identified by Name in Indemnification Clause Still Entitled to Indemnification.

Schiff v. Intersystem S&S Corp., 2026 NY Slip Op 01294, decided March 5, 2026, First Dept. Arose out of fall from scaffolding materials left on a sidewalk. Apple Bank brought cross claim against Intersystem for breach of contract for failing to name Apple Bank on Intersystem’s liability policy as an additional insured. Appellate Court held Apple Bank entitled to summary judgment. Apple Bank submitted the contract requiring Intersystem to name “the Customer” as additional insured.

Although such contract not define contract term “the Customer,” documentary & testimonial evidence that Apple Bank submitted, including deposition testimony of Intersystem’s principal indicating “the Customer” referred to Apple Bank, established Apple Bank was “the Customer” within the meaning of the contract. As Intersystem submitted no insurance policy naming Apple Bank as an additional insured, Intersystem failed to raise an issue of fact.        

Comment. Entity does not have to be listed by name as entity to be indemnified in indemnification clause.  Rather, it can be described in the indemnification clause as owner or GC or some other designation.

Entity Not Indemnified by Subcontract

Subcontract indemnified “owner’s agent” not “owner.”

Premises owner’s agent named as indemnitee.

Construction manager not named as indemnitee in contract.

Premises owner not named as indemnitee in contract.

Issue of fact whether an indemnitee based upon prior contracts.

No Indemnification Obligation. Construction Manager Not Referred to in Contract as Owner’s “Agent.”

Court of Appeals

Court of Appeals. 2004. Agreement obligated contractor to indemnify owner & owner’s agents. Port Authority brought third-party action against Bovis, which, in turn, brought third-party action against VPH. While Bovis acknowledged it had no contract with VPH, Bovis asserted it was entitled to contractual indemnification based on indemnity clause in contract between Port Authority & VPH, claiming it was “agent” of Port Authority. Contract not define “agent.” Bovis argued it qualified at Port Authority’s agent as Port Authority retained supervision & control over Bovis’ work. While the contract between Port Authority & VPH refers to the construction manager more than 130 times, indemnification clause contains no reference to construction manager or to Bovis by name. Also, the contract never stated the construction manager as being an agent of Port Authority. Also, in the section of the contract that prohibited VPH from giving gifts to port Authority, terms “agent” & “construction manager” were used as separate classifications. If parties intended to cover Bovis as potential indemnitee, they only had to say so. Tonking v. Port Auth. Of NY & NJ, 3 NY3d 486;

First Dept.

First Dept. 2018. Contract Not Identify Entity as “Agent.” Subcontract between Cirocco & defendant Sabey Construction neither identified second third-party plaintiff Select as “agent” nor included Select in the entities identified in indemnification provision. As such, no obligation on Cirocco’s part to indemnify Select & no such obligation will be read into it.  Nicholson v. Sabey Data Ctr. Props., LLC, 160 AD3d 587;

Premises Owner Not Named as Indemnitee. No Obligation to Indemnify Premises Owner.

First Dept. 2022. Entity Not Identified on “Cover Page” as Entity to be Indemnified in Contract. The contract in Article 1, titled, Definitions subsection (k) defines “Owner” to mean the persons or entities identified as the Owner on cover page of Agreement & include any heir, legal representative, successor or assign of such specified Owner.” Cover page of Agreement not name Granite as owner or anywhere else in contract. Padron v. Granite Broadway Dev., 209 AD3d 536;

First Dept. 2022. Premises Owner Not Named as Indemnitee. As indemnification clause stated owner’s agent, not owner, owner’s third party action against plaintiff’s employer dismissed. Tishman identified as “owner’s agent” in contract. Premises owner, LIC, neither identified nor included under indemnification provision & indemnification must be “strictly construed.” Tavarez v. LIC Dev. Owner, LP, 205 AD3d 565;

First Dept. 2021. Premises Owner Not Named as Indemnitee. St. Valentine denied contractual indemnification as it was not included as named “owner” in indemnification agreement. Also, no evidence it was third party beneficiary of agreement between tenant & contractor. Nothing in agreement suggesting St. Valentine, the premises owner, was intended to be a named indemnitee & St. Valentine’s failed to establish it proffered any consideration in order to be considered a party to the agreement. St. Valentine not know about construction project & not entitled to enforce indemnification provision in tenant’s agreement with contractor. Benitez v. Church of St. Valentine Williamsbridge NY, 171 AD3d 593;

First Dept. 2021. Premises Owner Not Named as Indemnitee. 345 Main, premises owner not entitled to summary judgment on its contractual indemnification claim as it is not a signatory or indemnitee under contract. Zieba v. 345 Main St. Assoc., 171 AD3d 482;

First Dept. 2015. Owner Not Indemnified in Contract. Subcontractors’ subcontracts identified owner-indemnitee as Ana Tzarev Management Limited, not defendant ATNY. Contrary to 24 West’s & ATNY’s assertions that this was simply a mistake, a certificate of capital improvement for the project, signed by a representative of the tenant of the premises for tax purposes, identified owner of the project as Ana Tzarev Management Limited, not ATNY. As the court is required to strictly construe an indemnification agreement, court could not find that ATNY was the owner entitled to indemnification under the subcontracts. Maggio v. 24 W. 57 APF, LLC, 134 AD3d 621;

First Dept. 2012. Star Delta not contractually obligated to indemnify Lincoln Center & City for claims arising out of negligence on its part. While Star-Delta’s subcontract with IBC incorporates the General Conditions of IBC’s contract with Lincoln Center, which includes indemnification clause, it does not contain express agreement by Star-Delta to indemnify Lincoln Center & City. Betancur v. Lincoln Ctr. for the Performing Arts, Inc., 101 AD3d 429;

Second Dept.

Second Dept. 2009. No Contractual Obligation to Indemnify Tenant. Manhattan failed to establish it was entitled to contractual indemnification as indemnity provision contained no reference to an agreement obligating Macro to indemnify the tenant or lessee of covered “owner.” Bagniski v. Queen Grand Realty, 68 AD3d 905;

Owner & Agent Entitled to Indemnification Even Though Not Specifically Named in Subcontract.

Comment. While not specifically named, entity may fall under the umbrella of parents, affiliates, joint venturers, and anyone else acting for or on behalf of any of them as well as any other indemnitee required under the General Contract or others reasonably requested to be named.  As such, look to the definition of who qualifies as indemnitee from the language of the indemnification clause..

First Dept.

First Dept. 2024. Issue of Fact. Although NYU Langone was not specifically named as indemnitee, subcontract defined indemnitees to include not only “NYU Hospital Center,” but also its parents, affiliates, joint venturers, and anyone else acting for or on behalf of any of them as well as any other indemnitee required under the General Contract or others reasonably requested to be named.” ASR not submit evidence showing NYU Langone was not an indemnitee under that broad definition. Motion court erred in finding that only a named entity was entitled to indemnification as such interpretation renders portions of the indemnification provision meaningless. However, NYU Langone failed to submit evidence to clearly establish an intention to indemnify it. Bradley v. NYU Langone Hosps., 223 AD3d 509;

First Dept. 2021. Agent Was Indemnitee. Commodore failed to establish Madison & Delphi not entitled to indemnification under blanket insurance/indemnity agreement executed by Commodore, which required it to hold “Owner,” its agents & affiliates harmless against any claim “arising out of or in connection with or as a consequence of the performance of the work.” Evidence Madison was building owner & Delphi, the building lessee, was affiliated with the Delphi entity entering into the contract with Commodore for the project. Hogan v. 590 Madison Ave., LLC, 194 AD3d 570;

First Dept. 2020. Owner Was Indemnitee. Owner identity in subcontract determined by prime contract. Where subcontract contained indemnification provision in favor of “Owner” without clearly identifying “Owner,” such identity determined by reference to prime contract incorporated into subcontract. Higgins v. TST375 Hudson, 179 AD3d 508; First Dept. 2014. Managing Agent & Premises Owner Covered For Indemnification Under Contract. Court rejected assertion defendants 170 West End Avenue Owners Corp. & 170 West End Avenue Associates not entitled to indemnification because only 170 West End Avenue Condominium is specifically identified as the “Owner” in the contract. Indemnification obligation not limited to “Owner,” but includes “the Owner parties & their respective officers, board members, agents and employees.” 170 West End Avenue Associates is managing agent of building & 170 West End Avenue Owners Corp, is actual owner of building. Guzman v. 170 W. End Ave. Assoc., 115 AD3d 462;  

March 6. New York. Labor Law §240(1) Single/Two Family Exemption Denied to Defendant Homeowner. Issue of Fact Whether Homeowner Directed/Controlled Plaintiff’s Work.

Ballard v. Beard, 2026 NY Slip Op 01260, decided March 5, 2026, Third Dept. Plaintiff performing renovation work at defendant’s vacation house in Columbia County, fell into a hole that had been excavated for installation of a Bilco door in the basement of the house. Defendant moved for summary judgment claiming he was exempt from liability under the Labor Law as the owner of a single family dwelling as he did not direct or control injury producing work.

The Legislature has carved out an exemption to 240(1) and 241(6) for owners of one and two family dwellings who contract for but do not direct or control the work. Such exception enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by the Labor Law.

In ascertaining whether a particular homeowner’s actions amount to direction & control of a project, relevant inquiry is the degree to which the owner supervised the method & manner of the actual work being performed by the plaintiff. Defendant testified he hired Mr. Pesce to act as GC. Defendant did not ask Pesce if he had either workers’ compensation or liability insurance. Pesce did not provide estimate of projected cost of necessary renovations. It was Pece’s obligation to hire a crew. Pesce hired plaintiff to perform certain work.

Defendant denied having instructed Pesce to install Bilco door or having discussion of such installation. Plaintiff testified Pesce hired him; paid him weekly; supplied necessary materials; & instructed him on what tasks to complete. Plaintiff not recall discussing installation of Bilco door with defendant. Night before the accident, Pesce told plaintiff blocks needed to be brought to jobsite for installing Bilco door. Court found such evidence established prima facie burden homeowner’s exemption applied as defendant not direct or control injury-producing work.

However, plaintiff provided Pesce’s deposition testimony where he considered himself as the project “foreman” & defendant’s agent. Pesce denied being GC. Pesce said if he was GC he would have provided defendant with estimate of total cost prior to the starting the work. Instead, Pesce was paid for his labor on hourly basis & as certain parts of the job were completed. Pesce only paid the laborers when defendant was not present. Defendant paid for all supplies, tools & equipment& that defendant & defendant’s wife directed major aspects of the renovation. Laborers provided affirmations stating they were hired by defendant, not Pesce, & defendant personally directed work to be performed. Based upon such evidence, Appellate Court held plaintiff raised issue of fact to defendant’s motion and thus denied defendant’s summary judgment motion.

March 5. New York. Scaffold. Lack of Safety/Guard Rails or Misuse of Scaffold Cause of Accident? Comparative Negligence or Proximate Cause of Accident?

Bustamante v. BSD 370 Lexington, LLC, 2026 NY Slip Op 01180, Second Dept. BSD 370 Lexington contracted plaintiff’s employer to perform renovation work at building it owned on Lexington Avenue, NY County. Plaintiff’s work required him to stand on top of Baker scaffold. When plaintiff attempted to move the Baker scaffold while standing on the platform of the scaffold, scaffold toppled over, plaintiff falling 5 feet to the floor below.

Where plaintiff submitted transcript of his deposition testimony in which he testified scaffold had no safety railings & he was not provided with safety devices to prevent his fall, appellate court held plaintiff established a prima facie case of §240(1) violation. Appellate Court noted comparative negligence no defense to §240(1) violation.

Comment. Appellate Court decision reversed the motion court decision of denying plaintiff’s motion for summary judgment as to §240(1). Plaintiff in this case attempted to move the Baker scaffold by moving it while standing on such scaffold. Appellate court decision cites no evidence plaintiff was instructed to move the scaffold in this manner. Appellate Court cites no authority that this was the proper way to move a scaffold. Such decision cites no evidence plaintiff’s foreman was aware this is how plaintiff moved the scaffold.

So instead of climbing down from the scaffold & rolling it to the desired location, plaintiff concludes there is no reason for him to disembark from the scaffold while moving it. Plaintiff’s misuse of the scaffold results in scaffold “toppling over.” If plaintiff had not attempted to move the scaffold in this manner, scaffold would not have fallen over. Given that, is not the motion court’s decision the better decision, i.e., for a jury to determine whether defendants had foreseeability the baker scaffold would be moved in such a manner? If no foreseeability of such misuse of the scaffold, no need for a safety railing.  

March 4. New York. Indemnification. Subcontractor Had No Obligation to Indemnify or Procure Insurance For General Contractor as Subcontractor’s Work Had No Connection to Plaintiff’s Accident.

Cruz v. Lendlease, 2026 NY Slip Op 30587(U), decided February 17, 2026, Hon. James Clynes, Supreme Court, NY County. Plaintiff, employed by EJ Electric, injured while working at Javits Convention Center, when he tripped or slipped on debris, dust & sludge on fifth-floor passageway. Celtic Company was subcontracted by Lendlease, the GC, to perform sheet metal work for Javits project. Celtic employee testified Celtic workers were not working in vicinity of fifth-floor passageway when plaintiff’s accident occurred & their work unrelated to plaintiff’s electrical work.

Celtic, in moving for summary judgment, asserted alleged Labor Law provisions should be dismissed against it as a subcontractor can only violate such provisions if it had the authority to control & supervise plaintiff’s work. Celtic asserted it never controlled or supervised plaintiff’s work.

Celtic cited Article 12 of its contract with GC Lendlease which provided that Lendlease could seek indemnification from Celtic in the course of any work performed by Celtic. Article 11 of the same contract required Celtic to procure additional insurance for liability incurred during the course of Celtic’s work. Celtic asserted that since this action involved work unrelated to work performed by Celtic, it was not obligated to indemnify & procure additional insurance to any defendant.

Celtic required by its contract with GC Lendlease to indemnify Lendlease for any liability caused by, arising out of, resulting from, or occurring in connection with Celtic’s performance of its work. Celtic was only required to procure insurance under such circumstances. Motion Court held Celtic established plaintiff’s accident had no connection to Celtic’s work. As such, Celtic had no indemnification obligation to GC Lendlease & also dismissed from plaintiff’s action as it was not liable for common law negligence or Labor Law violations.        

Comment. Absent evidence of subcontractor’s work having any connection with injury producing work, subcontractor has no indemnity obligations to the GC or to provide additional insured coverage to GC.  Subcontractor merely performing work at the same construction project where an accident occurred is insufficient to establish indemnification & insurance procurement obligations to the GC.

March 4. New York. Reformation of Indemnification Where Wrong Entity Named as Entity to be Indemnified

Comment. Reformation of a contract or agreement requires a showing of

Mutual mistake or fraudulently induced mistake.

Establish by clear, positive and convincing evidence agreement not accurately parties’ intentions or previous oral agreement & reformation is appropriate remedy where wrong party was named in the contract.

Signed writing not express previously reached oral agreement.

First Dept.

First Dept. 2016. 313 West was building owner & Solil was building’s managing agent. Solil hired K&K as the GC pursuant to written contract that referred to Solil as building owner. 313 West moved for reformation of the contract to name it as the building owner.  A claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake. To succeed, party asserting mutual mistake must establish by clear, positive and convincing evidence agreement does not accurately parties’ intentions or previous oral agreement & reformation is appropriate remedy where wrong party was named in the contract. Plaintiff established that K&K intended to indemnify the true owner, 313 West. 313-315 W. 125^th St. LLC v. Arch Specialty Ins. Co., 138 AD3d 601;

Third Dept. Third Dept. 2021. Party seeking reformation bears the burden to show by “clear & convincing” evidence that document in question was executed under mutual mistake or unilateral mistake coupled with fraud and to demonstrate in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties. In a case of mutual mistake, parties reached an oral agreement and unknown to the other, signed writing not express such oral agreement. There were no factual allegations that Central Mutual agreed to provide coverage to Pollards in their individual capacities or that any oral agreement to that effect was reached. Hilgreen v. Pollard Excavating, Inc., 193 AD3d 1134;

March 3. New York. While City of NY’s Motion to Amend Its Answer to Include Affirmative Defense of Fraud Denied Where Prior Precedent, Appellate Court Expanded Discovery to Post-Note of Issue as to “Documents.” Likely Include Funding Agreements. A Way Around Perdomo v. 361 Realty, 2026 NY Slip Op 00860

Arita v. FDS Assoc., LLC, 2026 NY Slip Op 01152, decided March 3, 2026, First Dept. Appellate Court held the motion court (Hon. Myrna Socorro), properly denied the City of NY leave to amend its Answer to add affirmative defenses of fraud and fraud on the court based upon a RICO complaint filed in federal court naming plaintiff’s attorneys and some of his medical providers as defendants.

Appellate Court decision cited in support of its 2024 decision, Linares v. City of NY, 233 AD3d 479, where defendants moved to amend their answer to assert counterclaim for fraud based on RICO complaint filed in federal court. Linares noted proposed counterclaim failed to allege any facts that plaintiff knowingly made material misrepresentations so as to support a fraud claim. It was held, “The unproven allegations of fraud against plaintiff’s attorneys & medical providers in the RICO complaint do not, without more, warrant a counterclaim for fraud against plaintiff himself.”

Linares holding was that “it should be left to the trial court to determine to what extent defendants can explore the RICO allegations at trial.” In Arita, the First Dept. held, “City should be permitted to conduct further limited discovery in the form of a deposition of plaintiff, constrained to what knowledge he had, if any, of the facts underlying allegations in the RICO action brought against his attorneys and medical providers, and discovery of any documents the City may learn during that deposition. This limited discovery, however, can be conducted while the case remains on the trial calendar.”   

Comment. Arita holds that even after note of issue filing, further deposition of plaintiff is allowed as to what knowledge plaintiff may have had as to allegations in the RICO action brought against plaintiff’s attorney & medical providers in that case. Likely, a plaintiff is going to deny knowledge of such allegations against its attorney & medical providers. However, Arita allows “discovery of any documents the City may learn of during that deposition.” This would appear to encompass a “funding agreement” where plaintiff is provided money prior to any verdict or settlement from a company engaged in such activity. Such funding agreement may confine plaintiff as to which doctors and medical facilities are to provide treatment & whether plaintiff is obligated to consent to procedures, including injections and surgeries, without option of seeking second opinion. Such funding agreement is outside attorney client privilege.  

March 3. New York. Back or Knee Injury Sustained From Excessive Weight of Object Being Carried/Lifted. Labor Law §240(1) Dismissed.

Comment. “Mere fact plaintiff injured by weight of a heavy object not 240(1) violation.” Such accident not caused by elevation related hazard. Injury caused by lowering a bucket is outside the protection of 240(1). While such accidents are tangentially gravity related, accident is result of routine workplace risk.

Note. First Dept. has held suffering such a back injury falls within protection of 240(1). Gove v. Pavarini McGovern, LLC, 110 AD3d 601 (2013).

Second Dept.

Second Dept. 2018. 240(1) Dismissed. Carrying a Beam. As part of work in renovating a bathroom, plaintiff & co-worker carrying heavy beam on their shoulders from their truck outside of premises to bathroom. Beam had to be brought through front entrance & then down set of steps. While engaged in such work, plaintiff felt his knee go forward” nearing bottom of steps with beam on his shoulder. Plaintiff dropped beam & fell to floor. 240(1) dismissed as accident not caused by elevation-related hazard. Plaintiff asserted cause of injury weight of beam he was carrying. Mere fact plaintiff injured by weight of a heavy object not 240(1) violation. Sullivan v. New York Athletic Club of City of NY, 162 AD3d 950; 

Second Dept. 2015. 240(1) Dismissed. Lifting a Steel Beam. Plaintiff injured installing 500 pound-beam into wall of house. Plaintiff & coworkers used hoist to lift beam 15 feet onto scaffold upon which plaintiff was standing. Hoist then removed from beam & one end of beam temporarily connected to wall of house, while other end of beam remained on top of scaffold. Plaintiff took end of beam resting on top of scaffold & manually lifted it one & one-half feet to connect it to wall of house. Plaintiff injured his back lifting beam. Fact plaintiff injured while lifting heavy object not give rise to 240(1) liability as injury not caused by elevation-related hazard. Cardenas v. BBM Constr. Corp., 133 AD3d 626;

Second Dept. 2003. 240(1) Dismissed. Accident From Using Rope to Lower Object. Plaintiff, an iron worker, injured his back at construction site while using rope to lower bucket containing 80-90 pounds of steel bolts. Protections of 240(1) not implicated simply because injury is caused by effects of gravity upon object. While back injury tangentially related to effects of gravity upon the bucket of steel bolts he was lowering, not caused by elevation-related hazards encompassed by 240(1). Aloi v. Structure-Tone, Inc., 2 AD3d 375; 

Fourth Dept.

Fourth Dept. 2021. 240(1) Dismissed. Lifting Metal Structure Off Surface of Roof. While lifting large metal structure 6-8 inches off surface of roof to allow coworkers to apply new roofing material underneath, plaintiff injured his back. Although accident tangentially related to effects of gravity upon the object he was lifting, accident not caused by limited type of elevation-related hazards encompassed by 240(1). Accident resulted from routine workplace risk of construction site. Branch v. 1908 West Ridge Rd, LLC, 199 AD3d 1362;

Fourth Dept. 2017. 240(1) Dismissed. Lifting Switchgear Segments. Plaintiff, journeyman electrician, engaged in renovation work at school. Plaintiff & coworker instructed by foreman to move two heavy switchgear segments from loading dock to room in basement of school. While lifting one of the segments, plaintiff injured his back. 240(1) dismissed as accident result of routine workplace risk of construction site & not elevation-related risk. Horton v. Board of Education of Campbell-Savona Central School District, 155 AD3d 1541; Fourth Dept. 2015.

240(1) Dismissed. Lifting a Door. Plaintiff, a carpenter, hired to perform exterior renovation work single-family residence & accident occurred while installing a door.  As plaintiff & coworker lifted door & were maneuvering door across a gap, plaintiff felt a twinge or “pop” in his lower back. Although the back injury was tangentially related to the effects of gravity upon the door he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by 240(1). Hazard at issue here, i.e., carrying a heavy object across a lateral gap, even while positioned at a height, is a routine workplace risk of a construction site & not a pronounced risk arising from construction work at site elevation differentials. Carr v. McHugh Painting Co., Inc., 126 AD3d 1440;

March 3. New York. One And Two-Family Homeowners Exemption to 240(1) & 241(6) Liability

Homeowners Exemption Applied Even Though Corporation Was The Premises Owner

Wolosz v. Erzuli, 2026 NY Slip Op 30584(U), decided Feb. 17. 2026, Hon. Arlene Bluth, Supreme Court, NY County. While working at construction site, plaintiff carrying heavy machinery down permanent staircase to the basement when he fell upon losing his balance. Defendant Erzuli LLC, the premises owner, contended the project was going to be used as a single family home & no employee of Erzuli LLC directed or controlled injury producing work. As such, defendant Erzuli LLC sought summary judgment on Labor Law §240(1) action on the Homeowners Exemption. Construction consisted of turning 2 single family townhouses into a single home.

It was held, “the fact that title to an otherwise qualifying one and two family dwelling is held by a corporation rather than an individual homeowner, does not, in and of itself, preclude application of the  homeowners exemption, citing Assevero v. Hamilton  & Church Properties, LLC, 131 AD3d 553 (2^nd Dept. 2015). Although plaintiff complained it did not get the chance to question Erzuli’s principal, plaintiff did not point to, or attach, any evidence he ever pursued this deposition. Plaintiff offered no evidence the property was anything other than a residential property.

Comment. Owners of single and two family homes, not apartments, having construction work performed to such homes, are exempt from 240(1) & 241(6) liability when a worker suffers an accident.

Home must be used for residential, not commercial purposes.

Court of Appeals

Court of Appeals. 1995. Issue of fact whether the two two-family semi-attached structures are entitled to homeowners exemption. Such 2 buildings shared a single stairway leading to all units in both buildings; had a single metal gate, with one entrance, surrounding both properties; a common roof.  Also, the 2 structures had separate basements, heating systems, doorways, garages, are taxed separately & have different addresses. Issue of fact whether homeowners exemption applies. Mandelos v. Karavasidis, 86 NY2d 767; 

Court of Appeals. 1992. Issue of Fact as to Possible Commercial Use. 240(1) Not Dismissed. Plaintiff fell from ladder while cutting down a tree. A tree limb struck plaintiff’s ladder, causing fall to the ground. Tree removal was part of plan to remodel a house. The tree was to be removed to make way for the construction but also to allow paving the driveway of the house and in connection with a parking lot to serve the funeral home of defendant. Owner stated purpose in renovating the premises included upgrading it for possible future rental and he did rent the house to 2 families. Lombardi v. Stout, 80 NY2d 290; 

Second Dept.

Second Dept. 2015.  In 1980, the Legislature amended Labor Law Sections 240 and 241 to exempt owners of one and two family dwellings who contract for, but not direct or control the work from the absolute liability imposed by these statutory provisions. Assevero v. Hamilton & Church Props., LLC, 131 AD3d 553;

Second Dept. 2016.  Exemption was enacted to protect owners of one and two-family dwellings who are not in a position to realize, understand, and insure against responsibilities of strict liability imposed by 240(1) and 24196).  Ramirez v. LGCC Wall Sys., Inc., 140 AD3d 1047;

Third Dept.

Third Dept. 2022.  Although both 240(1) and 241(6) impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for protection of workers engaged in construction-related activities, the Legislature has carved out an exemption for owners of one and two family dwellings who contract for but do not direct or control the work. Capuzzi v. Fuller, 200 AD3d 1448;

 Evidentiary Showing of Homeowner

Work was conducted at a residence for only one or two families.  As such, apartment building not qualify for homeowner’s exemption.

Homeowner must show it not direct or control the work being performed at the residence.

Second Dept. Abdou v. Rampaul, 147 AD3d 885;  

Evidence Indicating Commercial or Residential Use of Home

Mortgage which deleted provision that home only be used as residential premises.

Documentation showing 3 RSD had previously undertaken similar projects for commercial purposes.

Nothing in house plans indicated commercial use.

Certificate of Occupancy.

Tax certificate defendant signed certifying she was exempt from paying sales taxes on the materials & labor used to construct the barn as it was to be used predominantly in farm production or in a commercial horse boarding operation.

Residential or Commercial Use

First Dept.

First Dept. 2024. Mortgage Provision as Evidence. In a prior motion, plaintiff raised issue of fact as to whether defendant intended to use property for commercial purposes by submitting evidence that a provision of the mortgages on the property that required defendants to occupy the property within 60 days and to use the property as its principal residence had been deleted. Motion to renew was denied. Defendant submitted affidavit that he & his family had moved into the property after renovations were completed. However, the fact that the family moved into the property after the accident not change the result, as the availability of homeowner’s exemption hinges upon the site & purpose of the work, a test which must be employed on the basis of homeowner’s intentions at the time of the injury. Solis v. 340 W. 12 Realty LLC, 2024 NY Slip Op 01886;

First Dept. 2023. Documentation For Similar Projects. Issue of Fact Whether Property to be Used For Commercial Purposes. 3 RSD is owned by a nonparty LLC that has only one managing member. 3 RSD submitted its managing member’s affidavit stating 3 RSD intended to use the property solely for residential purposes. Plaintiff produced documentation showing 3 RSD had previously undertaken similar projects for commercial purposes. 3 RSD made its motion prior to producing the managing member for a deposition. As such, plaintiff established that facts essential to justify opposition might exist but could not be stated as information was within the exclusive knowledge of the party moving for summary judgment. As such, the motion was dismissed as premature. Rivera v. Matiz Architecture, PLLC, 217 AD3d 552;

First Dept. 2018. Nothing in house plans indicated commercial use. 240(1) & 241(6) Dismissed. Defendant homeowners showed they were never at the residence while it was under demolition/construction; had no role in the work and intended to use the premises as a family vacation home.  Nothing in the house plans indicates any portion would be for commercial purposes and plaintiff’s speculation that the house might be rented when homeowners not in residence insufficient to raise issue of fact. Domiguez v. Barsalin, LLC, 158 AD3d 532;  

First Dept. 2014. Homeowners Intended to Use One Family House as Second Home At Time of Accident, Although Subsequently Leased House After Accident. Plaintiff fell from scaffold while working on renovation project at owners’ one family house.  Deposition testimony that the owners renovated the house for purpose of modernizing it and using it as a second home was not contradicted.  The house was unoccupied at the time of the accident.  The renovation began in July 2005.  Renovation reached the punch stage list in the fall of 2006.  The owners, who never occupied the house, decided to lease it out in spring of 2007 & did so in August of 2007.  Owners entitled to homeowners exemption. Farias v. Simon, 122 AD3d 466;

First Dept. 2009. Certificate of Occupancy. Plaintiff fell from icy scaffold while doing renovation work at recently purchased weekend home of defendants. Certificate of occupancy stated it was a 2 family dwelling and that it was intended to be used as one family dwelling as did the prior owners. Fact that defendants hired an architect to draw plans for portions of the work and to periodically check to see if the quality of the work was reflective of her plans was not personal direction and control by defendants. Plaintiff received his daily orders from his foreman & general manager of the contractor, provided his own tools or received them from employer. Defendants made only a few visits to house & their conferences with GC were to gauge progress and discuss aesthetic details. Thompson v. Geniesse, 62 AD3d 541; First Dept. 2008.

Tax Certificate. Plaintiff sustained injuries while working on a barn owned by defendant & located on a parcel adjacent to that on which defendant’s one-family dwelling was located. Conflicting evidence as to whether the 2 parcels were separated by a fence & whether the barn was accessible only from a neighbor’s road raised issue of fact. Another issue of fact, as to whether defendant intended to use the barn for commercial purposes is raised by a tax certificate she signed certifying she was exempt from paying sales taxes on the materials & labor used to construct the barn as it was to be used predominantly in farm production or in a commercial horse boarding operation. While such certificate not estop defendant from denying she intended to use the barn commercially, it constitutes some evidence of such intention, justifying denial of defendant’s motion. Davis v. Maloney, 49 AD3d 385;

March 2. New York. Whether School Construction Authority (SCA) Owned And Made “Special Use” of Public Sidewalk in Construction Project.

Torres v. City of NY, 2026 NY Slip Op 30553(U), Hon. Hasa Kingo, Supreme Court, NY County. Plaintiff alleged trip & fall accident from height differential between sidewalk flags at 306 Fort Washington Avenue, NY County. SCA conceded that when the accident occurred, construction work was ongoing under the SCA’s direction through its contractor & that a sidewalk bridge installed as part of such project. SCA contended that while sidewalk bridge was installed, SCA had no duty to repair or replace sidewalk concrete until removal of sidewalk shed.

Motion Court held issue of fact whether SCA was owner or entity in sufficient control of the property/sidewalk to owe a duty to plaintiff. Municipal property/zoning records described Dept. of Education (DOE) as having “assigned management jurisdiction” to SCA pursuant to the Public Authorities Law & which also provided the zoning lot was presently owned by SCA. SCA’s witness, when asked who owned the property, responded it was either SCA or DOE. As SCA’s own witness could not definitively exclude SCA ownership, SCA not establish it was not an owner or entity controlling the area.

“Special Use” also at issue. “The Court of Appeals has long recognized that where permission is granted by a municipal authority to interfere with a street/sidewalk for private use & convenience, the party deriving such a special benefit unrelated to public use may be required to maintain the affected area or structure in a reasonably safe condition, grounded in that party’s access to & control over the special use installation.” Kaufman v. Silver, 90 NY2d 204 (1997).

Motion Court also cited First Dept. precedent that where construction protections encroach on narrow pedestrian passage & may direct pedestrians toward a defect, summary judgment dismissing claims on duty/causation grounds may be unwarranted because of issues of fact whether an encroachment constituted special use & whether it proximately caused the injury by channeling the pedestrian path. McKenzie v. Columbus Ctr., 40 AD3d 312 (207).   

Here, Motion Court held it was an issue of fact whether sidewalk shed narrowed/directed pedestrian travel in a manner that increased risk of plaintiff encountering alleged sidewalk defect. SCA’s claim that a sidewalk replacement would only occur after sidewalk bridge removal, not negate duty to maintain reasonably safe pedestrian pathway during period SCA was occupying & using the sidewalk space.

Comment. Special Use. Where entity uses a sidewalk as part of its operations, such entity may be liable for sidewalk defect.  You typically see “special use” invoked where a property owner leases a building and the tenant, usually a retail store, uses the public sidewalk adjacent to the building to have a soda or recycling machine on the sidewalk, displays goods for sale on a sidewalk, or a tenant driving over the sidewalk to reach the rear of a building. In such instances, the tenant, not the premises owner, may be held liable for structural defects with the sidewalk.

March 2. New York. Labor Law §200 & Common Law Negligence Actions Dismissed Against Premises Owner/GC Warrants Contractual Indemnification From Subcontractor Supervising & Controlling Injury Producing Work.

Comment. Premises owner & GC, in seeking contractual indemnification from subcontractor must first obtain dismissal of the Labor Law §200 claim. Such dismissal established the owner & GC were not actively negligent. Indemnification, contractual or common law, is not available to an entity whose negligence caused or contributed to the accident.  Dismissal of §200 claim based upon the owner & GC not controlling or supervising the injury producing work.      

GC’s General oversight duties, work coordination, and safety reviews not constitute supervision & control under §200. “Authority to enforce general safety standards insufficient to establish Essex directed or controlled plaintiff’s work.”

First Dept.

Unloading Sheetrock From Truck Onto Dolly

First Dept. 2021. §200 Dismissed. BRF, the GC, just performed general safety supervision at the work site & had no supervisory control over decedent’s work, namely unloading sheetrock from a truck onto a dolly. Given dismissal of §200 claim against premises owner & GC, both entities are entitled to contractual indemnification if there is a finding of negligence against third party defendant Castellano v. Ann/Nassau Realty LLC, 199 AD3d 558;

Scaffold Fall

First Dept. 2019. §200 Dismissed. Plaintiff fell several feet from a scaffold. Such accident arose out of means & methods of work & not dangerous or defective premises condition. As contractor established it not exercise requisite degree of control over means & methods of plaintiff’s work at time of accident, §200 claim & common law negligence claims dismissed. Contractor thus established its entitlement to full contractual indemnification from subcontractor. Gilligan v. CJS Bidrs., 178 AD3d 566;

Electrical Shock

First Dept. 2015. §200 Dismissed. Plaintiff, a steamfitter, injured from electrical shock while performing work in ceiling of a building under renovation. Common law negligence & §200 claims dismissed against GC Hunter Roberts as general oversight duties, work coordination & safety reviews not constitute supervision & control under §200. Hunter Roberts established it was not on notice of unsafe condition of wires. Fact plaintiff granted summary judgment on 241(6) claim against Wells defendants not bar Wells defendants from contractual indemnification as their liability under 241(6) was purely vicarious, as no active negligence. Quiroz v. Wells Reit-222 E. 41^st St., LLC, 128 AD3d 442;

First Dept. 2012. §200 Dismissed. Baker suffered electrical shock while engaged in work. Subcontractor’s contract stated it will indemnify owner & GC  “for accident which happens, or is alleged to have happened, in or about the place where Work is being performed or in the vicinity thereof; while the subcontractor is performing the work , either directly or indirectly through a subcontractor or while any of Subcontractor’s property, equipment or personal are in or about such place by reason of the performance of the work.” As plaintiff performing work on behalf of subcontractor & other subcontractor still had property, equipment or personnel in place, Atlas, the owner, & GC Plaza entitled to contractual indemnification. With §200 & common-law claims dismissed against them, Atlas’s & Plaza’s only liability, if any, would be vicarious under 241(6).  As such, Atlas & Plaza can enforce indemnification provisions in the contracts. Fiorentino v. Atlas Park LLC, 95 AD3d 424;

Merely Walking Site on Daily Basis Insufficient to Deny Indemnification

First Dept. 2014. §200 Dismissed. Accident caused by manner in which work was performed by Sage, electrical contractor. Plaza Construction not exercise supervision or control over injury producing work. That Plaza had a representative who would walk the site on a daily basis & had authority to stop work for safety reasons is insufficient to raise issue of fact as to whether Plaza exercised requisite degree of supervision & control to sustain §200 or common law negligence claim. No evidence Plaza’s employees ever gave specific instructions to plaintiff, his employer, Sage, or other subcontractors working on the deck at time of accident. Also, deposition testimony provided Plaza not responsible for removing piece of electrical conduit causing plaintiff to trip. Indemnity provision provided Sage will indemnify Plaza for any liability or claims arising out of or connected with performance of work by Sage. As plaintiff’s accident was, at least in part, caused by or occurred in connection with Sage’s work of installing electrical conduit on a deck, Plaza entitled to unconditional indemnification from Sage. Francis v. Plaza Constr. Corp., 121 AD3d 427;

First Dept. 2014. §200 Dismissed. Third party defendant Solar was obligated by contract to indemnify defendants for suits arising from its work, except to the extent damage was attributable to defendants’ fault. In view of dismissal of common law negligence & Labor Law §200 causes of action, liability that may be imposed on defendant will be vicarious pursuant to 241(6) & no bar to their recovery of complete indemnification pursuant to Solar’s contract. Best v. Tishman Constr. Corp. of NY, 120 AD3d 1081; 

Fall From Ladder

First Dept. 2012. Plaintiff standing on a ladder, unassisted, attempting to pull a large piece of sheetrock in the ceiling of an apartment. Reaching for a screw gun strapped to his side, ladder collapsed, causing a fall. CPS owned the building. Defendant Slosberg retained DSA, plaintiff’s employer, to renovate & combine 2 apartments. CPS entitled to contractual indemnification from Slosbergs for “claims for damage to persons or property suffered as a result of the alterations.” As it was undisputed plaintiff’s accident arose from the alterations, CPS entitled to be indemnified. Dwyer v. Central Park Studios, Inc., 98 AD3d 882; 

Scaffold Came Into Contact With Building

First Dept. 2011. §200 Dismissed. Owner & GC Entitled to Contractual Indemnification. Accident occurred when suspended scaffold that plaintiff straddling swung toward a building & crushed his chest. Plaintiff working for A&B, which supplied plaintiff scaffold & supervised his work. Terms of trade contract to which A&B was retained required A&B to defend & indemnify defendants where, as here, claims arose from A&B’s work & no evidence of negligence by defendants, as the Court dismissed common law negligence & §200 claims. Indemnification clause not violate GOL §5-322.1 (1) as it limits indemnification to the fullest extent permitted by law. Smith v. Broadway 110 Devs., LLC, 80 AD3d 490;  

Platform Construction

First Dept. 2009. §200 Dismissed. Undisputed Carabie directed & controlled plaintiff’s work as well as construction & installation of the platform. §200 & common-law negligence claims against Posillico dismissed. While Carabie’s negligence was not yet been proven, Posillico’s liability, if any, would only be vicarious and statutory.  As such, Posillico entitled to contractual indemnification from Carabie.  Macedo v. JD Posillico, Inc., 68 AD3d 508;

Second Dept.

Second Dept. 2006. Site Owner & Construction Manager not exercise control or supervision of work site. Although employee of construction manager testified at his deposition that construction manager made daily inspections of site & could stop work for unacceptable safety standards, not sufficient to preclude contractual indemnification. Bink v. FC Queens Place Associates, LLC, 27 AD3d 408;  

Third Dept.

Cable Installation

Third Dept. 2012.  Time Warner entitled to Indemnification From subcontractor. Time Warner contracted with defendant Sure Connect to perform cable installations & Sure Connect, in turn, contracted with various technicians, including plaintiff to perform actual installation work. Indemnity agreement provided Sure Connect “shall be responsible for its acts and the acts of its subcontractors during performance of the services and shall indemnify and hold harmless Time Warner with respect to any claims arising from its negligent acts or omissions of those workers furnished by it.” Sure Connect was subject to limited oversight from Time Warner. Retention of general supervisory control insufficient to establish control necessary for Labor Law liability. As such, Time Warner not actively negligent & entitled to indemnity from Sure Connect. Gunderman v. Sure Connect Cable Installation, Inc., 101 AD3d 1214;

Third Dept. 2004. While Stone Bridge established BBL generally supervised project & maintained a presence at the site, evidence revealed BBL had no direct supervision over Stone Bridge employees or the manner in which the work was performed. As such, Stone Bridge failed to raise issue of fact as to BBL’s negligence sufficient to prevent dismissal of Stone Bridge’s claim for indemnification. Biance v. Columbia Washingto Ventures, 12 AD3d 926;

Fourth Dept.

Injury From Use of Saw Fourth Dept. 2005. Evidence established liability of Essex is vicarious, arising solely from its status as GC. Niagara Gutters, plaintiff’s employer, directed & controlled work plaintiff performing at time of accident, & Niagara Gutters owned the saw & the truck on which saw was mounted. That Essex may have had general supervisory authority over work, including authority to enforce general safety standards insufficient to establish Essex directed or controlled plaintiff’s work. Niagara Gutters obligated to indemnify Essex, the GC. Sparks v. Essex Homes of WNY, Inc., 20 AD3d 905; 

March 1. New York. Additional Insured Coverage. Declaratory Judgment Action Not a Vehicle to Decide Liability Issues Being Decided by Trial Court in Underlying Action. Risk of Inconsistent Verdicts.

Pace Univ. v. Clear Blue Ins. Co., 2026 NY Slip Op 30613 (U), decided Feb. 18, 2026, Hon. Phaedra Perry-Bond of Supreme Court, NY County. Pace contracted NYCAN to serve as construction manager on a project at One Pace Plaza in Manhattan. Such contract required NYCAN to procure CGL policy in the amount of $1 million per occurrence, with Pace to be named as additional insured (AI). Clear Blue issued CGL policy providing coverage in the amount of $1 million.

NYCAN subsequently contracted certain drywall work at the premises to Chelsea Construction Group & such contract required Chelsea to procure CGL policy in the amount of $1 million with umbrella insurance of $5 million, with such policies naming Pace & NYCAN as AIs on a primary & noncontributory basis.

Falls Lake issued a GCL policy to Chelsea in the amount of $1 million. Princeton issued excess policy to Chelsea for $1 million & Mt. Hawley issued excess umbrella policy to Chelsea with limits of $5 million.

Declaratory judgment action arose from the underlying lawsuit of Mr. Ramirez, who sustained injuries when falling off a scaffold in the course of his employment with Chelsea at the One Pace Plaza construction project. In response to such accident, Clear Blue tendered a request for indemnification and AI coverage for Pace & NYCAN to Chelsea & its insurer Falls Lake, which accepted such tender, providing defense counsel for Pace & NYCAN. Princeton & Mt. Hawley issued a reservation of rights but did not disclaim coverage.

In the underlying Ramirez action, Pace filed a third-party complaint against Chelsea seeking contractual indemnification. The motion court granted Mr. Ramirez summary judgment on the §240(1) action but did not determine whether defendants violated §200 & third-party claims for indemnification. Trial for the third-party claims is scheduled.

Pace & NYCAN claimed that Falls Lake, Princeton & Mt. Hawley must each provide them a defense & indemnification prior to defense & indemnification being triggered under Clear Blue’s policy & a declaration that such insurers may not rely on any exclusions or conditions to preclude coverage. The motion was withdrawn as to Fall Lake, presumably because Falls Lake assumed their defense.

Pace & NYCAN’s motion was denied, with leave to renew, after there has been a finding at trial that Chelsea’s acts or omissions proximately caused Ramirez’s accident. The motion deemed premature.

“Where as here, the issue of whether an insured proximately caused an accident has not yet been determined in underlying action, any determination in a declaratory judgment action as to the insurer’s duty to indemnify an AI based on the primary insurer’s purported responsibility is premature … The purpose of a DJ action is not to make a legal determination that are within the province of the trial court presiding over the underlying action giving rise to the coverage dispute … If this Court were to issue rulings on liability that are currently being litigated before the trial court, DJ actions would become venues to determine liability in wholly separate underlying actions, risking possibility of inconsistent verdicts.”

February 28. New York. Indemnification. Subcontractor Only Obligated as to Prime Contract Provisions Relating to “Scope, Quality, Character & Manner of Work.”

Figaro v. City of NY, 2026 NY Slip Op 30583(U), decided Feb. 17, 2026, Hon. Phaedra Perry-Bond, Supreme Court, NY County. Iron worker struck by 200-pound aluminum beam at the North River Pollution Control Plant in Manhattan. Defendant/third-party plaintiff City of NY owned the premises & retained defendant/third-party plaintiff Geomatrix Services to serve as GC on a construction project at the premises. Geomatrix retained Cube Construction & Cube retained Kosuri to design a system for installing steel beams that allegedly injured plaintiff.

Kosuri brought into the action by NYC & Geomatrix by a third-party complaint alleging contractual & common law indemnification. Kosuri brought as pre-answer motion to dismiss asserting it had no contractual relationship with NYC & Geomatrix & the common law indemnification warrants dismissal as Kosuri only provided limited engineering plans on the project.

Indemnification clause in the Purchase Order required Kosuri to indemnify the “Owner and others as may be required by the Prime Contract.” Such Purchase Order makes clear where the job site is & therefore the identity of NYC as the “owner” is unambiguous. However, it was held the reference to “and others as may be required by the Prime Contract” was insufficient for Geomatrix to sustain a third-party contractual indemnification claim.

Citing Goncalves v. 515 Park Ave. Condominium, 39 AD3d 262 (1^st Dept. 2007), “incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to the prima contract provisions relating to the scope, quality, character & manner of the work to be performed by the subcontractor.”

As such, contractual indemnification claim against Kosuri was dismissed as to the extent it was asserted by Geomatrix.  Again, Kosuri was retained by Cube Construction, who was retained by Geomatrix. Third party claim for indemnification dismissed since the promises upon such claim are based are found in the main agreement, to which third-party defendant Kosuri was not signatory to such agreement.    

Comment. A subcontractor contracting to indemnify a GC is not obligated to indemnify a premises owner. While the GC is obligated to indemnify the premises owner, the subcontractor entered into no contract with the premises owner.  While the contract between the subcontractor and the GC incorporated the contract between the premises owner and the GC by reference, that is not enough for the subcontractor to indemnify the premises owner. Subcontractor is bound by the premises owner-GC contract but only to the scope, quality, character & manner of work to be performed by the subcontractor. As such, no obligation to indemnify the premises owner.

Language Incorporating Prime Contract Into Sub-Subcontractor’s Contract.

Arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission … or failure to comply with the provisions of the Agreement or of the Laws.

First Dept.

First Dept. 2008. Third party claim for contractual indemnification properly dismissed since the promise on which it was based is found in the main agreement between Carlyle & original contractor, to which third party defendant Exterior was not a signatory. While the construction subcontract signed by Exterior incorporated the main agreement by reference, under NY law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Waitkus v. Metropolitan Hous. Partners, 50 AD3d 260;   

First Dept. 2007. Third party claim for indemnification dismissed since the promises upon such claim are based are found in the main agreement, to which third-party defendants were not signatories. While it is true that construction subcontracts signed by third party defendants incorporated the main agreement by reference, under NY law, incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Adams v. Boston Properties Ltd., 41 AD3d 112;  

First Dept. 2007. The unsigned purchase order between subcontractor Hird & sub-subcontractor Woodworks, plaintiff’s employer, requires Woodworks to “receive, distribute and install all work” in accordance with the terms of the attached “trade subcontract” between Hird & GC. Court held that such language does not incorporate the provisions of the trade subcontract relating to indemnification. Incorporation clauses  in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Nor is such incorporation accomplished by the portion of the “scope of work” clause of the trade subcontract requiring second-tier subcontractors like Woodworks to “maintain insurance equal to that required by this subcontract & be bound by the same terms and conditions as those of this subcontract. However, as there is no mention of indemnification & no reference to the trade subcontract, such obligation to obtain insurance does not require an obligation to indemnify. Goncalves v. 515 Park Avenue Condominium, 39 AD3d 262;  

First Dept. 2001. Under NY law, incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by the subcontractor. Further, there are no provisions in the prime contract expressly requiring subcontractors to purchase insurance or to indemnify Bell Atlantic, & extent to which subcontractors were bound by the Contract Documents expressly limited under Article 5(a)(4) of the contract’s General Terms and Conditions. Pursuant to Article 10 of the main contract, “Contract Documents” made no reference to documents pertinent to indemnification. Bussanich v. 310 East 55^th St. Tenants, 282 AD2d 243; 

Second Dept. 2012. Contractual Indemnification Denied. Cause of action for indemnification based upon promise in prime agreement between subcontractor BTG & GC Hunt Bovis to which Gessin Electrical was not a signatory. Despite the fact construction subcontract signed by Gessin incorporated the main agreement by reference, under NY law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to scope, quality, character & manner of the work to be performed by subcontractor. As such, provisions in prime agreement related to contractual indemnification for employee’s injuries & insurance procurement were not incorporated by reference into subcontract between Gessin & BTG & thus, defendants failed to establish existence of written indemnification agreement. Contractual indemnification denied. Persuad v. Bovis Lend Lease, Inc., 93 AD3d 831;

February 28. New York. Indemnification Claims Dismissed Against Site’s “Middle Man” as No Evidence Such Entity Controlled/Supervised The Work Causing The Building Damage.

Donnelly v. Pung San Constr. Corp., 2026 NY Slip Op 30578(U), decided Feb. 18, 2026, Hon. Arlene Bluth, Supreme Court, NY County. Action arose from damages sustained to a building from a fire. The painting subcontractor, AMHI, was hired by the owner. The last workers on the site before the fire were employees of AMHI. VVA asserted it had no responsibility to perform or supervise the work.

The decision held the premises owners hired VVA to act as a “middle man” and VVA specifically contracted not to have any supervisory control over the work. There is no allegation that VVA caused the fire in any way. That VVA may have communicated with AMHI as to AMHI’s work progress “is too attenuated” to find that VVA somehow had a duty to other subcontractors on site. VVA’s contract provided it had no duty to control AMHI’s work (assuming that AMHI’s work caused the fire). All indemnification claims against VVA dismissed.   

February 27. New York. Despite Plaintiff’s Uncontradicted Deposition Testimony of Not Knowing What Caused a Bar To Fall & Strike Him, Appellate Court, Reversing The Motion Court, Imposed §240(1) Liability in Unwitnessed Accident.

Valarezo v. HP Jamsta Hous. Dev. Fund Co. Inc., 2026 NY Slip Op 01148, decided Feb. 26. 2026 by First Dept., arose from an accident where plaintiff claimed he was struck by a falling bar at a work site. Plaintiff & coworkers were “making cement bases” by using a drilling/excavation machine for purpose of removing steel bars that had been drilled into the ground. When removing such bars, fabric sling was tied to the top of the bar, a hook was placed into the sling & drilling/excavation machine lifted the bar away. Appellate Court concluded, but not the plaintiff, that as one bar was being removed, it fell, striking plaintiff.

Appellate Court decision stated that plaintiff testified the falling bar was standing vertically on the drilling machine & was not secured before the machine moved it. It was held §240(1) was violated as evidence established the steel bar was not secured while the excavation/drilling machine was hoisting it out of the ground.

The decision further held that while plaintiff testified he did not see the precise moment the bar began to fall & was unsure whether a sling was attached to the bar at the time of the accident, plaintiff not required to show the exact circumstances under which the metal bar fell.

The motion court, in its decision, held, “the record is devoid of any admissible evidence demonstrating that at the time of the accident the subject bar was in fact being hoisted and was unsecured.”  The motion court further held, “Plaintiff does not testify that he knows what caused the accident and the deposition testimony are of witnesses that did not witness the accident. … The record is devoid of any admissible evidence demonstrating that at the time of the accident the subject bar was in fact being hoisted and was unsecured.” As such, the motion court denied plaintiff’s summary judgment on the §240(1) cause of action.  

As plaintiff testified he was unaware what caused the bar to strike him, why does appellate court decision conclude the metal bar was being hoisted where the appellate court states its decision granting §240(1) is entirely based on plaintiff’s deposition testimony?

While appellate court decision held plaintiff “was not required to show the exact circumstances under which the object fell,” according to the evidence cited in the motion court decision, plaintiff not only did not know the exact circumstances of what caused the accident, plaintiff knew of NO circumstances as to how the metal bar fell. For the appellate court to reverse the motion court where plaintiff’s deposition testimony is he did not know what caused the metal bar to fall and such alleged accident unwitnessed, troubling.

February 27. New York. Labor Law §240(1). Platform of Order Picker (Similar to Forklift) Fell, Striking & Killing A Worker. §240(1) Issue: Was The Worker Performing Routine Maintenance or a Repair?

Wissert v. Medline Indus. Inc., 2026 NY Slip OP 01101, decided February 26, 2026, Third Dept. The decedent, a technician for third-party defendant Pengate Handling Systems of NY, went to a facility owned by defendant to service an “order picker,” described as a platform upon which a person can stand that can be hydraulically raised & lowered. As the decedent was examining & disassembling the order picker, such order picker’s raised platform fell upon the decedent, causing his death.

Plaintiff moved for summary judgment under Labor Law §240(1), claiming the lack of a safety device, namely, a “safety stand,” violated §240(1).

At issue, for §240(1) liability, was whether plaintiff engaged in repair work or maintenance. Judicial precedent provides that only repair work is protected under §240(1). As such, if plaintiff is struck by a falling object or suffers a fall from an elevated height while engaged in routine maintenance work, §240(1) claim is dismissed as a matter of law.

Repairing is distinguished from the uncovered activity of routine maintenance, which involves replacing components requiring replacement in the course or normal wear & tear. Work occasioned by isolated & unexpected event is held to constitute repair work under §240(1) protection.

Plaintiff cited deposition testimony of Mr. Hill, a technician employed by Pengate & decedent’s coworker at the time of the accident. Hill examined the order picker prior to the day of accident & found there to be a leaking lift cylinder. Such problem required repacking of the hydraulics, which involved raising & securing the picker’s platform, removing the cylinder & installing new seals.

This would take 2-5 hours & such was outside scope of scheduled maintenance, requiring a separate work order. Hill testified that on the day of the accident, he & decedent moved the order picker to a loading dock & raised the platform to begin the process without securing platform’s elevated position. Decedent attempting to remove a “snap ring,” which is part of the repackaging procedure when struck by falling platform.

Plaintiff’s expert, Edward Zemeck, an engineer, opined hydraulic system work performed by decedent constituted a repair because it stemmed from isolated event.

Defendant submitted its scheduled maintenance agreement with Pengate, stating hydraulic leaks are expressly listed. Court noted that while such agreement is identified as one for “maintenance,” & notes that work should be “carried out once every service interval,” it also provides repairs will be carried out at current rates for labor, parts & expenses.”

Upon such evidence, it was held issue of fact whether such work was a repair or maintenance. “Indeed, delineating between routine maintenance & repairs is frequently a close, fact-driven issue.”

Comment. Third Dept. provided a comprehensive decision commenting upon how various forms of evidence were interpreted as to this issue.  I do not think the court’s decision of an issue of fact was determined solely from competing expert witness opinions. How the work was performed; how long the task would take; why the work was performed; and terms of a service agreement, were all considered beyond that of expert opinion. Again, where a worker falls off a ladder or elevated platform, or is struck by a falling object, if that worker was engaged in routine maintenance, one example, changing a light bulb, §240(1) is not violated.

February 26. New York. Subcontractor Not Agent of Owner of GC. 240(1) Dismissed. First Dept. Decisions.

Comment. To be an agent of premises owner or GC, the entity must have had control over the injury producing work. Such control allows the entity to implement site safety measures for work it was performing, or, assumed overall authority to correct unsafe work conditions at project site. This would include authority over the work area where the accident occurred. Also, provided no equipment to plaintiff. Often, such agent is plaintiff’s employer.

Subcontractors are statutory agents in which provisions of contracts granted supervisory authority and where subcontractors exercised supervisory authority.

First Dept.

First Dept. 2023. Defendants Not Statutory Agents of Owner as Plaintiff’s Hiring Unknown to Defendants. Plaintiff hired by company having no authority to hire plaintiff. Plaintiff secretly hired & brought to site by a non-supervisory employee of Uplift, elevator subcontractor on the building renovation. Uplift employee hiring plaintiff not authorized by Uplift or any other contractor or owner to hire plaintiff to work at site & Uplift employee surreptitiously paid plaintiff in cash for his work after the accident. Defendants cannot be deemed statutory agents as not have supervisory control & authority over the work when plaintiff injured. Defendants thus had no control over work performed by plaintiff.Garcia v. 13 W. 38 LLC, 214 AD3d 408;

Scaffold Company

First Dept. 2022. 240(1) & 241(6) claims dismissed against Swing Staging, as Swing not contractor or owner within meaning of statutes. Nor was Swing a contractor’s or owner’s statutory agent. Although it contractually retained right to reenter premises & inspect scaffold system, Swing had no employees on site during 4 Star’s work & not inspect scaffold system while it was in place. Once Swing constructed scaffold system, it returned to premises only to deliver supplies & to disassemble scaffold system at end of project. Guevara-Ayala v. Trump Palace/Parc LLC, 205 AD3d 450;

Verizon

First Dept. 2021. Verizon Not Statutory Agent. 240(1) Action Dismissed. No evidence Version contracted for, directed or controlled, or benefitted from work plaintiff was performing for cable company at the time he was injured or was acting in capacity of an “owner” with 240(1).Plaintiff’s work replacing damaged cable equipment & reconfiguring its support system using J-hooks & anchors affixed to a utility pole amount to repairs and/or alteration to the equipment. No evidence Verizon had a right to insist plaintiff follow proper safety practice when performing work. Villalta v. Consolidated Edison, 197 AD3d 1078;

First Dept. 2018. 241(6) Dismissed as Subcontractor Exercised No Control Over Work Area or Injury Producing Work. 241(6) not automatically apply to all subcontractors on a site or in the chain of command. Rather, for liability under 241(6) to attach to a defendant, plaintiff must show the defendant exercised control, either over plaintiff or the work that caused plaintiff’s accident. Here, no evidence US roofing or A-Deck exercised control over plaintiff or the work giving rise to plaintiff’s accident. Adagio v. NYS Urban Dev. Corp., 161 AD3d 624;  

First Dept. 2018. 240(1) & 241(6) Dismissed. Debris Removal Outside Scope of Work Authority. Accident occurred when plaintiff slipped on debris while performing work in connection with design, fabrication & installation of window washing system that was subcontracted to Tractel as part of building construction. Since debris removal was not within scope of authority or work delegated to Tractel, Tractel not liable under 240(1) or 241(6) as statutory agent of GC. Nothing in subcontract delegating such work. Santiago v. 44 Lexington Assoc., LLC, 161 AD3d 444;   First Dept. 2012. Not a Statutory Agent. Plaintiff fell from wibbly ladder while engaged in work at Lincoln Center. JDP Mechanical not statutory agent for purposes of 240(1). JDP’s contract with Lincoln Center limited its responsibilities & potential liability to work it was hired to perform & oversee, which did not include plaintiff’s work. Plaintiff’s work was performed under separate contract between Lincoln Center and Integrated Building Controls. No evidence JDP controlled means & methods of plaintiff’s work or that it assumed overall authority to correct unsafe work conditions at project site. Betancur v. Lincoln Ctr. For the Performing Arts, Inc., 101 AD3d 429;  

February 26. New York. Labor Law §241(6). Industrial Code §23-9.7 (e).  Defendant Failed to Establish Truck Was Stationary at Time of The Accident.

Riding.

No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except where a properly constructed and installed seat or platform is provided.

Comment. 23-9.7(e) not apply to accident sustained while exiting a vehicle.  Accident must occur while vehicle is in transit.

Mendes v. State of NY, 2026 NY Slip Op 01048, decided Feb. 25, 2025, Second Dept. Claimant was mixing paint inside the back of box truck when such truck began to move. In response, Claimant attempted to exit through the back of the truck but coworker raised the lift gate of the truck. As Claimant ran towards the back of the truck, she lost her balance, fell, with her leg caught in the lift gate, sustaining injury.

Defendant failed to show 23-9.7(e) not apply. Defendant submitted affidavit from quality control officer who did not witness the accident but stated the truck was not moving. There was deposition testimony from the Claimant & co-worker the truck was moving at the time of the accident. Held that defendant failed to establish a prima facie case that the truck was stationary when the accident occurred & therefore §23-9.7(e) did not apply. The decision cited Wetter v. Northville Indus. Corp., 185 AD3d 874 (see below).

23-9.7(e) Sufficiently Specific to Support 241(6) Cause of Action

Fourth Dept. 2001. Clause v. EI du Pont De Nemours & Co., 284 AD2d 966; 

23-9.7(e) Dismissed

First Dept.

First Dept. 2017. 23-9.7(e) Dismissed. Raised boom on truck struck overhead sign causing plaintiff to be thrown from the truck. James v. Alpha Painting, 152 AD3d 447;

Second Dept.

Second Dept. 2020. 23-9.7(e) Not Apply. Only regulates transporting persons in truck or similar vehicle. Not apply to injuries sustained while exiting vehicle.Plaintiff injured when he jumped from flatbed of a stopped truck, not while riding in the truck. Also, 23-9.7(e) is silent as to egress from a truck & plaintiff’s interpretation requires a construction that would add to the 23-9.7(e)’s plan meaning. Wetter v. Northville Industries Corp., 185 AD3d 874;

Second Dept. 2017. 23-9.7(e) Dismissed. “Platform” includes platform of pickup truck.  Plaintiff injured riding on platform of pick-up truck. Plaintiff’s foreman instructed plaintiff to ride on the back of the truck, with the tailgate closed, to ensure plastic containers filled with loading tiles & concrete, remained in place.  When rear wheel of truck came into contact with retaining wall, truck came to sudden stop, plaintiff fell to the bed of truck. Code word “platform” must reasonably be read to include platform of pickup truck. Pruszko v. Pine Hollow Country Club, Inc., 149 AD3d 986;

Second Dept. 2016. 23-9.7(e) Dismissed as Plaintiff’s Actions Sole Proximate Cause of Accident. Plaintiff made the decision to forgo riding in the front passenger seat of the truck in favor of riding on top of a cast iron grate lying on truck’s open tailgate. Eddy v. John Hummel Custom Builders, Inc., 147 AD3d 16;

Second Dept.  2000. 23-9.7(e) Dismissed. Accident not occur while truck was in transit. Rather, accident occurred while plaintiff unloading materials from truck. Vargas v. State of NY, 273 AD2d 460;

February 25. New York. Labor Law §240(1) Imposed Where Permanent Part of Building Fell. However, No Analysis of Foreseeability That Permanent Part of Building Would Fall.  

5915 Larone Butler v. Marco Realty Assoc., LP, 2026 NY Slip Op 01006, decided February 24, 2026, First Dept. Plaintiff, working as demolition laborer for Always First, testified that a pipe measuring 8 inches wide & 10 feet long, fell from a ceiling while he was working underneath it. The pipe had been partially cut by another worker a “few hours” before the accident. In imposing §240(1) liability, appellate court held such pipe was an object that required securing & “plaintiff’s injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in §240(1).”

But a pipe measuring 8 inches wide & 10 feet long was a permanent part of the building. A falling permanent part of a building is outside the protection of 240(1).  First Dept. 2019. 240(1) Dismissed. Pipe saddle that detached from an overhead ceiling pipe assembly & struck plaintiff  was not an object requiring securing as it was a permanent part of the structure. Djuric v. City of NY, 172 AD3d 456.

First Dept. 2025. Moises-Ortiz v. FDB Acquisition LLC, 242 AD3d 550. FDB owned construction site & Pav-Lak was construction manager of demolition of existing building & replacing it with two-story property. Pav-Lak subcontracted foundation work to third-party defendant RNC Industries. Because the site was excavated below the grade of adjacent building, the plan called for work to underpin & support neighboring building’s foundation. Plaintiff, employee of RNC, in performance of the work, was struck by large piece of concrete that came loose from adjacent building’s newly exposed façade.

While §240(1) not apply to a falling object that is a permanent part of a building, an exception to the rule is if was foreseeable to defendants the permanent part of the building would fall. Decision noted, “Whether the collapse of a permanent structure is foreseeable is analyzed not in the strict negligence sense, but in the sense of foreseeability of exposure to elevation-related risk.” Decision held, “possibility of insecurity in the foundation developing after adjacent demolition was well known to defendants, as evinced by the need for a support plan in the first instance.”

In the 5915 Larone Butler case, the First Dept. analysis should have been whether it was foreseeable to defendants the pipe, partially cut a few hours before the accident, would fall, i.e., were there indications the partially cut pipe presented a risk of falling or whether subsequent work caused it to fall. If subsequent work, was it foreseeable such work would put the pipe at risk of falling from the ceiling location? What was missing from the decision here was any foreseeability analysis. While the decision stated, “foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in §240(1),” the issue was foreseeability of whether a permanent part of the building, i.e., the pipe, was secured, not a safety device.

February 24. New York. Collapse of Floating Ceiling Not Permanent Part of Building Because No Final Inspection & Sign-Off Occurred. §240(1) Liability Imposed.

Fernandez v. Sub 412 Assoc. , LLC, 2026 NY Slip Op 01009, decided Feb. 24, 2026, First Dept. While working as laborer on construction project, removing debris from floor, floating ceiling installed as part of the project collapsed on plaintiff. Appellate Court held defendants’ argument that floating ceiling was a permanent structure, requiring plaintiff to establish collapse of the floating ceiling was foreseeable for Labor Law §240(1) to apply, “was not persuasive.”

The decision held such argument was not persuasive because “no evidence was offered as to a final inspection of the structure that would precede a sign-off as to the drop ceiling’s completion.”  

Floating ceiling is defined as a type of suspended drywall ceiling installed independently from the walls. The drywall is hung from a metal grid & suspended from the ceiling joists. A floating ceiling is generally considered a fixture if it is permanently attached to the building’s structure. This is because the method of attachment, such as screws or nails, suggests that such ceiling was intended to be a permanent part of the building. (Stimmel, Stimmel & Roesner)

Comment. The decision holds a ceiling is not considered a permanent part of the building until a “final inspection” & “sign-off” occurs. A “final inspection” has been defined as a thorough review of the construction work by either building inspector, project manager, or both, to ensure all aspects of the project meet required building codes, standards & specifications of the building contract. (Alysed Construction). A “sign-off” is defined as an approval or acceptance of a project.  

As such, the Rule in the First Dept. is that a building structure is not “permanent” for purpose of §240(1) until there is final inspection & sign-off.  See decisions below where it was found §240(1) was dismissed as plaintiff was struck by a falling permanent part of building & reasonable foreseeability of such a dangerous condition.

 “Reasonable Foreseeability” of Falling Permanent Part of Building.

Architect’s field report dated 7 days prior to the accident of unsafe conditions and building completely open to elements.

A NYC violation issued the date of the accident described conditions as hazardous & cited failure to carry out demolition operations in safe & proper manner.

Foreseeable risk of floor capacity overloading.

Cracks in the flooring.

Permanent Parts of Building or Structure. 240(1) Dismissed or Plaintiff’s Motion Denied.

Pipe saddle that detached from an overhead ceiling pipe assembly.

Ductwork attached to ceiling.

Ceiling.

Balcony.

Non-Permanent Parts of Building or Structure. 240(1) Not Dismissed.

Uncompleted staircase.

Flange.

First Dept.

Foreseeability of Collapse. Not Extend to Anything Other Than Permanent Structures. First Dept. 2012. 240(1) Liability Imposed. Plaintiff, employee of subcontractor on Second Avenue Subway Tunnel Construction Project, injured while connecting pipes that were to be used to pour concrete using Tremie Concrete method. To perform such work, plaintiff stood on work platform located 8 feet above ground & was contained within metal cage known as tremie rack. This was rectangular structure 12 feet high. Court declined to extend foreseeability requirement to anything other than permanent structures that are not safety devices by their nature. Tremie rack was not in a fixed position but rather, rested upon wooden planks atop an uneven, gravel surface. Accident occurred as result of gravity related hazard created by elevation differential of tremie rack in which plaintiff was working & the tremie rack should have been secured to the ground. Plaintiff submitted testimony indicating accident would not have occurred had tremie rack been secured to the ground. Ortega v. City of NY, 95 AD3d 125;

February 24. New York. Labor Law §200 Not Dismissed. Owner Had Constructive Notice of Dangerous Condition: Presence of Algae.

Olecki v. BP 399 Park Ave., LLC, 2026 NY Slip Op 30484(U), decided Feb. 9, 2026, Hon. Phaedra Perry-Bond, Supreme Court, NY County. Cooling tower in condominium building experienced oil leak, requiring Atlantic to replace a pinion oil seal to stop the leak. To reach the area requiring repair, Atlantic’s employee, the plaintiff, was required to climb down from the top of the cooling tower. He then lowered himself onto a narrow 14-18-inch wide catwalk & then lowered himself further to stand on top of a drift eliminator in the cooling tower. When plaintiff’s feet touched the drift eliminator, the drift eliminator broke, causing plaintiff to fall 12 feet. Plaintiff not provided any wooden planks to put on surfaces like the drift eliminator to ensure a stable surface.

Plaintiff “believed” drift eliminator decomposed because of presence of moss or algae on the drift eliminator. Premises’ chief engineer could not recall the last time drift eliminators were cleaned & he never inspected them. Degradation of drift eliminator “coupled with the growth of algae is not the kind of condition that could have formed overnight.” As such, constructive notice may be inferred from its existence. Defendants’ motion to dismiss the Labor Law §200 cause of action denied.  Drift eliminators are specialized components in cooling towers designed to capture water droplets from the exhaust air, minimizing water loss, chemical emissions & environmental impact. (coolingtowerinfill.com)

February 23. New York. While Labor Law §200 Held by Court to be Abandoned by Plaintiff, Owner & GC  Must Still Offer Evidence Establishing Free of Negligence to Obtain Contractual Indemnification.

Comment. Where premises owner & GC seek toobtain contractual indemnification from a subcontractor, in addition to showing plaintiff’s accident arose from the subcontractor’s performance of work or negligence, owner & GC must establish there were free of negligence by obtaining dismissal of Labor Law §200 claim in a summary judgment motion.

Note the decision below that plaintiff’s abandonment of §200, as held by a court, fails to establish the owner and GC were free of negligence, resulting in denial of the indemnification claim. Such owner and GC have to offer evidence establishing being free from negligence.

Second Dept. 2024. As the motion court directed dismissal, as abandoned, of the causes of action of Section 200 and common law negligence as asserted against SHS Ralph, SHS contends it is entitled to contractual indemnification since its liability under 240(1) would only be vicarious as the premises owner. Court disagreed. The motion court directing dismissal, “as abandoned,” of the cause of action alleging a violation of §200 & common law negligence as asserted against SHS was not affirmative demonstration that SHS was free from negligence. Caracciolo v. SHS Ralph, LLC, 226 AD3d 861;

February 22. New York. Contractual Indemnification. First Dept. Decision Finding Conditional Indemnification Questionable. No Evidence Construction Manager Failed to Perform Its Contract Duties And No Evidence Offered of Premises Owners Free of Negligence.   

Plaintiff, a laborer, climbed atop of an 8-foot by 14-foot dumpster, approximately 4.5 feet in height, to place a tarp over the dumpster & to secure the tarp on the dumpster’s sides using wires. As plaintiff stood on the dumpster, a gust of wind “caught the tarp,” causing him to fall from the dumpster. Eighth and Seventh LP and Chelsea Leaf South owned the subject premises of the construction project. Eighth and Seventh LP entered into a contract with Flatiron Construction Corp. for Flatiron to be the construction manager.

Such contract contained an indemnification agreement stating Flatiron would indemnify the owners from “any and all claims … asserted against the owners by reason of any act or failure to act on the part of Flatiron in connection with the performance of the services hereunder which is in violation of the terms of this Agreement.

Flatiron, under the agreement with the premises owner, delegated authority to Flatiron to monitor subcontractors’ performance of the work, including their compliance with their safety obligations. Flatiron was compensated for the retention of a Safety Coordinator to secure safety & Flatiron was authorized to stop the work if it determined the work was not being done safely in accordance with the subcontract.  The subcontract agreement entered into by plaintiff’s employer required the employer to adopt and carry out any reasonable suggestions by the owners’ representative, i.e., Flatiron, to ensure site safety. Flatiron representatives testified of Flatiron’s duty to oversee safety on the project & stop the work if warranted.

The accident arose out of the work of plaintiff’s employer. The decision offers no evidence of Flatiron having notice of plaintiff climbing atop the dumpster, or of receiving complaints of such actions. Absent such evidence, there is no indication of “failure to act on the part of Flatiron in connection with the performance of the services” Flatiron was contracted to perform. Flatiron was not plaintiff’s employer & did not instruct plaintiff to climb atop the dumpster. Absent requisite evidence of Flatiron having such notice, Flatiron not obligated to stop the work or to indemnify the owners.

Further, the decision offers no evidence of whether the premises owners were free of negligence.  General Obligation Law §5-322.1 bars an entity from being indemnified for its own negligence. The decision offers no evidence premises owners had no notice of plaintiff standing atop a dumpster as a means of applying a tarp to the dumpster. Absent such evidence, the premises owners failed to establish a prima case for contractual indemnification, or even conditional indemnification.

February 22. Plaintiff’s Labor Law §240(1) Motion Denied. While Plaintiff Fell From Elevated Height, Was Such Work of Covering a Dumpster With a Tarp to be Performed at Elevated Height? Sole Proximate Cause, Not Comparative Negligence.

Carreno v. Chelsea Leaf S. Hous. Dev. Fund Corp., 2026 NY Slip Op 00971, decided February 19, 2026, First Dept. Plaintiff, a laborer at construction site, climbed atop 8-foot by 14-foot dumpster, which measured 4.5 feet in height, for purpose of placing a tarp over the dumpster & securing the tarp on the dumpster’s sides using wire. Plaintiff testified that while standing atop the dumpster. A gust of wind allegedly “caught the tarp,” causing plaintiff to fall off the dumpster. Plaintiff moves for summary judgment under Labor Law §240(1) alleging a fall from an elevated height.

Appellate Court denied plaintiff’s motion because plaintiff did not establish “he was engaged in elevation related hazard as that work was intended or supposed to be performed.” The decision did not deny plaintiff sustained a fall from an elevated height, bringing the accident within the protection of §240(1).

Rather, the decision went to whether plaintiff needed to perform such work at elevated height. The decision stated there was deposition testimony from other workers at the construction project that the “standard procedure for covering the dumpster involved several laborers working jointly at ground level to spread the tarp over the dumpster.”

The decision took into account deposition testimony of the “standard procedure” in covering a tarp at this project. As such “standard procedure” was for multiple workers to cover the dumpster with the tarp while standing on the ground, the decision is essentially holding that if plaintiff failed to observe such standard procedure of covering the dumpster with a tarp, plaintiff was sole proximate cause of the accident, a defense to §240(1) action.

Significance of the decision is that plaintiff’s act of standing on the dumpster was not held to be comparative negligence, which is not a defense to a §240(1) claim.  Rather, again, the decision is holding an issue of fact existed as to whether plaintiff’s act of standing on the dumpster was the sole proximate cause of the accident.

With an issue of fact as to liability, the credibility of plaintiff’s testimony as to being directed by an “unknown individual” to stand on the dumpster; that plaintiff was following example of other co-workers standing atop the dumpster; and that a gust of wind knocked him off the dumpster, will be decided by a jury. Do I think the court’s decision of an issue of fact was influenced by plaintiff’s testimony that a mere gust of wind was able to knock him off a dumpster? Absolutely.       

February 21. New York. Labor Law §240(1) Imposed Where 12-Foot A-Frame Ladder Was in Closed Position Because Plaintiff Could Not Open It.

Roque v. 240 Lincoln Place, LLC, 2026 NY Slip Op 0096, decided February 19, 2026, First Dept. Appellate Court noted the facts of the accident, “Plaintiff established prima facie entitlement to summary judgment on the §240(1) claim through his submission of undisputed evidence that the 12-foot A-frame ladder he was working on slipped out from underneath him while he was standing on it, causing him to fall and land on top of the ladder.

Based on these facts, appellate held, “Plaintiff’s decision to use an A-frame ladder in the closed position is not, in and of itself, a reason to declare him the sole proximate cause of the accident, as he provided a specific reason for using the ladder while it was still closed: he was unable to open it because of its size and weight.”  

Comment. So, plaintiff does not go with the usual reason for using a closed A-frame ladder, i.e., because of space constraints, the A-frame ladder could not be opened. Rather, plaintiff, a construction site worker, went with he was physically incapable of opening a 12-foot A-frame ladder.
There was no evidence cited in the decision that such 12-foot A-frame ladder was somehow defective or broken, preventing it from being opened. There was no statement in the decision whether plaintiff had, at some time prior to this accident, ever opened a 12-foot A-frame ladder with similar weight. No statements were offered in the decision as to what actions, if any, plaintiff took in attempting to open such ladder. There are no statements in the decision as to whether plaintiff made any attempt to spread apart the legs of the A-Frame ladder and/or use 1 or even maybe 2 hands by pushing down on the spreader bars on the 2 sides of the ladder. 

The decision cited no corroborating evidence of the construction worker’s claim of being physically incapable of opening a 12-foot A-frame ladder, i.e., no broken arms or fingers, no eyesight deficiencies.  Significantly, decision cited no evidence plaintiff was absent from construction school the day they taught how to open a 12-foot A-frame ladder. Decision did not say whether it was a wooden or aluminum ladder proving so devilishly baffling to open.

Despite such “missing” information, the appellate court did not even deem it necessary to deny SJ on issues of fact. No, on this record, SJ granted to plaintiff.

So, now there is precedent, in the First Dept., that where a construction worker testifies at a deposition he was physically incapable of opening a 12-foot A-frame ladder or maybe any type of A-frame ladder, resulting in a fall from the closed ladder, Labor Law 240(1) prima facie case is established. Call me crazy, but is this really the precedent an appellate department wants to own? See previous First Dept. decisions below.     

First Dept. 2022. Closed position ladder leaning against a wall.As plaintiff fell from a ladder unsecured & leaning against a wall in closed position because of obstructions in workplace established 240(1) liability. Castillo v. TRM Contr., 626, LLC, 211 AD3d 430;

First Dept. 2021. Worker’s decision to use A-frame ladder in closed position not a per se reason to declare worker sole proximate cause of accident. Worker gave specific reason why he used ladder in closed position. Morales v. 2400 Ryer Ave. Realty, LLC, 190 AD3d 647;

First Dept. 2015. Plaintiff’s deposition testimony established proximate cause of accident was his inability to open properly 12-14 foot A-frame ladder from which he fell because a pile of sheetrock being stored on the floor where he was working prevented him from doing so. As such, plaintiff not sole proximate cause of his accident & any negligence on plaintiff’s part in leaning against unopened A-frame ladder against the wall not defense to 240(1) action. Howard v. Turner Construction Co., 134 AD3d 523;

First Dept. 2015. Plaintiff gave specific reason why he used ladder in closed position. He testified that using ladder in open position & twisting his body to face a tank would have been exhausting, requiring him to take frequent breaks, which defendants not dispute. Court held, “we are hesitant to adopt a rule that, in order to permit a worker to enjoy protection of 240(1), would require such worker to take extraordinary measures to perform his work, when he has a good faith belief that doing so would cause him acute discomfort while drastically slowing his pace.” Noor v. City of NY, 130 AD3d 536;

First Dept. 2014. Plaintiff NOT Instructed Not to Use A-Frame Ladder in Closed Position. Not proximate cause of accident. While installing black iron into concrete ceiling, A-frame ladder plaintiff using “kicked out” from underneath him, causing a fall. Even assuming defendants presented sufficient evidence to raise issue of fact as to whether plaintiff, contrary to his deposition testimony, was using ladder by leaning it against a wall in folded position, defendants offered no evidence plaintiff not instructed to use the ladder in such a way. Fernandez v. 213 E. 63^rd St., LLC, 115 AD3d 514; 

First Dept. 2013. 240(1) Imposed. Debris prevented opening of ladder. Plaintiff fell from ladder as plaintiff descending the ladder. Plaintiff unable to open 12 foot aluminum ladder because of debris. Ladder wobbly & shook at times. Plaintiff complained about ladder to his supervisor & asked for another ladder. Plaintiff not given another ladder. While descending ladder, plaintiff’s foot got stuck on spikes that were on steps of ladder, causing a loss of balance & fall. Keenan v. Simon Prop. Group, Inc., 106 AD3d 586;   First Dept. 2008. 240(1) Liability Imposed. Ladder in closed position, leaning against boiler. As A-frame ladder, when opened, not tall enough to enable him to reach top of the boiler, he climbed the ladder while it was in closed position & leaning against a boiler. Ladder collapsed while plaintiff climbing ladder in closed position. Such action of plaintiff not sole proximate cause of accident given unsecured ladder on which he was standing & no other safety devices provided. Vargas v. NYC Tr. Auth., 54 AD3d 579; 

February 21. New York. Fraud. Appellate Court Denies Motion to Amend Answer to Allege Fraud. Appellate Court, Requiring Misrepresentations by Plaintiff, Can Find It in First Responder & Emergency Room Statements of Plaintiff.

Santacruz v. 58 Gerry St LLC, 2026 NY Slip Op 00997, decided Feb. 19, 2026, First Dept. Defendants brought a motion seeking to amend their Answer to the Complaint to assert affirmative defense & counterclaim for fraud based on a RICO Complaint, in an unrelated case, filed on September 6, 2024. Defendants alleged that “some of the attorneys who previously represented plaintiff in this action, and some of plaintiff’s medical providers, conspired to defraud insurer in workers’ compensation & third-party personal injury actions.”

Apellate Court denied such motion. “The unproven allegations of fraud against plaintiff’s former attorneys & medical providers in the RICO Complaint do not, without more, warrant an affirmative defense or counterclaim for fraud against plaintiff himself. Further held, “Even if, as defendants urge, plaintiff is the “Claimant A” referenced in that RICO Complaint, these unproven allegations of fraud are insufficient to support a claim for fraud against plaintiff.”

Appellate Court noted that while plaintiff shares & has shared an address with many other workers’ compensation claimants & personal injury plaintiffs that does not in & of itself establish plaintiff’s claims in this case are fraudulent. Also defendants did not plead justifiable reliance or resulting damages beyond “having incurred litigation costs as a result of plaintiff pursuing a fraudulent or frivolous claim.” To the extent plaintiff’s claims are frivolous, defendants may seek sanctions under CPLR 83030-a or 22 NYCRR §130-1.1.

Comment. A case cited in the decision was Dec. 10, 2024 First Dept. decision, Linares v. City of NY, 233 AD3d 479, where defendants also made a motion pursuant to CPLR 3025 to amend its Answer to the Complaint to assert a counterclaim for fraud based on the same RICO Complaint. In that case, appellate court denied defendants’ motion to amend its Answer because the counterclaim failed to allege any facts that plaintiff knowingly made material misrepresentations so as to support a fraud claim. “The unproven allegations of fraud against plaintiff’s attorney & medical providers in the RICO complaint do not, without more, warrant a counterclaim for fraud against plaintiff himself.”

Linares decision further held, “While defendants emphasize that plaintiff’s independent medical examinations corroborate his participation in the alleged scheme in that the physicians challenged the cause of plaintiff’s claimed injuries & necessity of his medical treatment, they fail to sufficiently plead what, if any, misrepresentations plaintiff knowingly made.” Knowing misrepresentations can be present in first responder & ER statements of plaintiff as to what injuries were sustained in the accident. How is lumbar surgery connected to complaints to ER care providers of injuring an arm? How is neck surgery related to “I hurt my knee?”

February 21. New York. Labor Law §240(1). Pallet Jack. Defendants’ Motion Denied. Issue of Fact as No Reason Submitted Why Coworker Lost Control of Pallet Jack Causing Load to Strike Plaintiff.

Torres v. 40 E. End Assoc. LLC, 2026 NY Slip Op 01001, decided February 19, 2026, First Dept. Plaintiff guiding a pallet of construction material being delivered to a work site. Coworker was moving such load using a pallet jack, which used hydraulic machine to raise the pallet up so it could be moved. As the coworker operating the jack began to move the pallet, wooden part of pallet broke, causing hydraulic machine to be stuck at the edge of the truck delivering construction material. Although coworker managed to free the hydraulic machine, he lost control of the lever, causing the full load of the pallet to fall on plaintiff’s foot.

Defendants’ motion denied as issues of fact existed as to sufficiency of pallet jack as safety device for moving the load of construction material. No evidence submitted as the reason the coworker could not control the pallet jack or why he could not hold onto it properly. As such, issue of fact whether jack itself was defective & failed to provide protection against a risk arising from  application of force of gravity to a heavy load during hoisting operation.   

Apellate Court decision also held Incident Report failed to state why coworker released the lever on the hydraulic machine. As such, it was held defendants not foreclose possibility of coworker losing control of the lever because the jack was defective or inadequate for the job being performed. Also, not clear whether author of Incident Report actually witnessed accident. At most, Incident Report raised issue of fact whether accident caused by human error.

Decision cited, Schoendorf v. 589 Fifth TIC LLC, 206 AD3d 416 (1st Dept. 2022), where plaintiff was attempting to move 400-pound elevator platform from the front of a flatbed truck to the tailgate. Such platform, 7-feet long, rested on a pallet jack that was too small for the platform. This caused the platform to dip, touching the flatbed truck surface. As plaintiff was lifting the platform 5 inches off the pallet jack in order to place a second pallet underneath it to facilitate moving the platform he injured his arm. Labor Law §240(1) was imposed by appellate court.

Decision also cited, Ali v. Sloan-Kettering Inst. For Cancer Research, 176 AD3d 561 (1^st Dept. 2019), an AC system coil weighing 300 pounds & being transported secured to 2 dollies, fell on his leg, while being unloaded from a truck. “In view of the weight of the coil & amount of force it was able to generate, even in falling a relatively short distance, such accident resulted from a failure to provide protection required by §240(1) against a risk arising from a significant elevation differential.”  

Comment. Although the decision not contain approximation of the weight the load of pallet jack striking plaintiff’s foot, decision states such accident involved “force of gravity.” For §240(1) to apply, worker need not be struck by overhead falling object. §240(1) also encompasses those objects at the same level as the worker that fall over, as occurred here with the load from the pallet striking plaintiff’s foot. Wilinski v. 334 E. 92^nd Hous. Dev. Fund Corp., 18 NY3d1 (2011), where pipes that were left standing, fell over, striking plaintiff, imposing §240(1) liability.

February 20. New York. Additional Insured (AI). “Completed Operations”

Comment. AI coverage extended under products/completed operations insurance for a year after the accident. AI subject to same policy conditions as the named insured.

First Dept.

First Dept. 2013. Roadway not breach its duty, under either purchase agreement or standard terms, to procure insurance naming Con Edison as AI with respect to plaintiff’s accident. Standard terms specified that Roadway obligated to maintain a products/completed operations insurance policy for “at least one year after completion of performance hereunder.”  While purchase order stated contract term ran for 2 year period from December 2000 to December 2002, work causing accident took place on January 26, 2001. As such, Roadway’s duty to maintain insurance with Con Edison as AI ended on January 26, 2002, one year after Roadway finished its work under contract & 4 months before accident. Evidence provided Roadway performed no work for Con Ed at all after Con Ed ordered it off work site on January 26, 2001. Con Ed asserted Roadway had a duty to maintain insurance for Con Ed until one year after the full contract term ended, December 17, 2003. Although contract not define “performance,” its language strongly suggests the terms” perform” and “performance” refer to actual physical labor Roadway was hired to do, not just Roadway’s theoretical availability to perform work for Con Ed. LaMorte v. City of NY, 107 AD3d 439; 

AI Coverage Extended Beyond Date AI’s Completed Operations.

Second Dept.

Second Dept. 2011. Insurer Scottsdale asserted the defendants’ status as AIs terminated on July 29, 2006, the date Metrotech completed its operations on subject construction project. As the date of completion predated the collapse, Scottsdale argued defendants no longer qualified as AIs & thus, Scottsdale had no duty to defend. Insurance provisions covering only ongoing operations or, conversely, not covering completed operations, are treated as policy exclusions. To be relieved of a duty to defend on basis of a policy exclusion, insurer bears heavy burden of demonstrating complaint allegations cast the pleading wholly within that exclusion, that exclusion is subject to no other reasonable interpretation & that there is no possible factual or legal basis upon which the insurer may eventually be held to be obligated to indemnify the insured under any policy provision.  Scottsdale failed to establish complaint allegations wholly within a policy exclusion. 492 Kings Realty, LLC v. 506 Kings, LLC, 88 AD3d 941;

Third Dept.

Third Dept. 2008. Issue of Fact as to AI coverage. Whether Work Ongoing When Accident Occurred. A golfer slipped & fell on newly constructed deck at club house owned by Saratoga National Golf Club. D&B constructed the deck & was insured by Great American Insurance.  Issue was whether the owner was AI on Great American policy. Such coverage depended upon whether D&B was still engaged in work at the time of the accident. There was a punch list showing further work needed to be done at the time the accident. Such evidence issue of fact as to AI coverage for owner. One Beacon Ons. v. Travelers Prop. Cas. Co. of Am., 51 AD3d 1198;  

Fourth Dept. Fourth Dept. 2010. “Ongoing Operations.” Failure of a dam. Term “ongoing operations” is interpreted broadly in NY. Work may be considered as ongoing during a short lapse of time necessary to conduct tests designed to assure proper performance where such testing is an essential element of the work by the insured. While major construction by Kubricky ended 2 months before the dam’s failure, inspection of the project by the engineer, which was required before Kubrick’s work was considered completed under the contract, had not yet occurred. In light of the nature of the project, such inspection was not merely a minor after the fact detail. As such, Town was AI. Town of Fort Ann v. Liberty Mut. Ins. Co., 69 AD3d 1261;

February 19. New York. Labor Law §240(1) Dismissed. While Lifting Cart on Rooftop, Plaintiff Struck by Cart. No Fall From Elevated Height Nor Struck by Falling Object.

Williams v. City of NY, 2026 NY Slip Op 00938, Second Dept., decided February 18, 2026. Plaintiff employed as laborer for Venture Solar, who was hired to install solar panels on the rooftops of Queensbridge Housing Project in Queens. Plaintiff & coworkers instructed to move a “moon cart” from one rooftop to adjacent rooftop that was 2 feet higher & separated by a gate. Moon cart or buggy allows for movement of tools & materials on a job site with rough & irregular surfaces.

Workers decided to move such moon cart by lifting it above their heads & passing it over the gate. As plaintiff lifted one corner of the moon cart while he stood on the rooftop, such moon cart hit plaintiff in the head, causing a fall. As the decision does not state plaintiff fell off the roof, there was no fall from elevated height.

§240(1) dismissed as accident not caused by elevation-related or gravity-related risk required for a §240(1) violation. The decision cited Christie v. Live Nation Concerts, Inc., 192 AD3d 971 (2^nd Dept. 2021), where §240(1) claim dismissed where plaintiff injured his knee carrying “heavy steel truss” with 4 coworkers on level ground. Also cited was Garcia v. Edgewater Dev. Co., 61 AD3d 924 (2^nd Dept. 2009), where plaintiff injured when a panel of drywall struck his back as he was unloading it from a raised platform & pulling it through an open second-story window.

Comment. While plaintiff in Williams v. City of NY suffered a fall at elevated height, i.e., a rooftop, plaintiff falling to the roof established there was no fall from an elevated height & there was no falling object. Rather, plaintiff was holding the object, i.e., the moon cart, when he was struck by such cart. Absent such facts, §240(1) was dismissed as a matter of law.          

February 18. Appellate Court Denied Defendant’s Motion to Compel Discovery of Documents Related to Litigation Funding.

Perdomo v. 361 E. Realty Assoc. LLC, 2026 NY Slip OP 00860, decided Feb. 17, 2026, First Dept. It was held defendant GFE E. Fordham Road LLC, failed to show “why the funding documents are material & necessary to a defense of this action. The amount & source of litigation funding is not a subject of plaintiff’s claims for damages, and GF has not explained how discovery of funding documents would support or undermine any particular claim of defense.”

The decision further held, “GF also offers no basis for its theory that litigation funding documents would shed light on plaintiff’s motivation for bringing the action, and it is otherwise unclear how those documents would be of assistance in revealing any improper motive.”

Decision noted that because litigation funding is in the form of a loan that plaintiff is obliged to repay, it does not qualify as a collateral source on which GF is entitled to discovery under CPLR 4545. “… to the extent that GF is entitled to information regarding whether plaintiff is actually under an enforceable obligation to repay, that information may be obtained through interrogatories  or depositions.” Decision also held that GF presented no evidence “to support its assertion that a litigation funding company may, as an interested lienholder, have veto power over any potential settlement & therefore could impede a resolution of the action.”

Decision also held, “Any assertion that the litigation funding is affected by fraud is speculative. Although GF states that the doctors and facilities that treated plaintiff were named in various civil RICO actions alleging fraudulent treatment & billing practices, GF presented no evidence of misconduct by plaintiff’s doctors or his attorneys in this action, nor does GF state which of plaintiff’s medical providers were named in the RICO actions.

Lastly, the decision noted that the “fact that almost none of plaintiff’s treatment costs were billed to Medicaid, even though plaintiff is a Medicaid recipient does not suggest that plaintiff & and his treatment team have engaged in fraud. In fact, it is entirely plausible that plaintiff elected to obtain treatment from medical providers that did not accept Medicaid & that plaintiff was willing to pay the borrowing costs of funding for that treatment.” Comment. As there are currently several actions pending against lawyers & medical providers alleging, in part, conducting surgeries that were not needed, such funding documents may offer information as to whether such funding loans were contingent upon a worker having such surgery. GF’s request for funding documents is premised, in part, upon who made the decision for a worker having surgery & who chose the surgeon. GF is seeking to know what power, if any, did the funding loan company have over a worker’s medical treatment. Appellate court’s decision turns a blind eye to the power of the purse.  

February 18. §240(1). Plaintiff’s §240(1) Motion Denied as Issue of Fact Whether Plaintiff a Recalcitrant Worker.

Scanlon v. South St. Seaport LP, 2026 NY Slip Op 00864, decided Feb. 17, 2026, First Dept. Plaintiff’s summary judgment motion on §240(1) from falling off ladder denied as questions of fact whether plaintiff sole proximate cause of accident. That plaintiff could not describe how accident occurred immediately after the accident not bar recovery under §240(1) claim. Plaintiff’s account of accident not lack credibility; there were physical manifestations of injury & plaintiff rendered incoherent from accident. None of workers onsite offered alternative version of accident or facts inconsistent with plaintiff falling off a ladder.

However, plaintiff’s summary judgment motion denied as questions of fact existed whether plaintiff’s actions were sole proximate cause of accident. Contradictory evidence whether plaintiff’s employer, Kenvil United, provided subject ladder. Plaintiff testified unsafe to use “separated extension ladder.” Evidence of other safe & readily available means of access to the worksite.

Comment. The precedent is that if there are no witnesses to a fall from elevated height but plaintiff’s deposition testimony is credible & not contradicted, summary judgment on §240(1) cause of action is granted. That did not happen here. The decision stated, “contradictory evidence whether plaintiff’s employer, Kenvil United, provided the ladder.” However, if a ladder was defective, §240(1) is not contingent upon who provided the ladder.

It appears §240(1) motion of plaintiff was denied because of issue of fact whether plaintiff was “recalcitrant worker.” Decision cited plaintiff’s deposition testimony that he was aware it was unsafe to use “separated extension ladder” & because of evidence of availability of safer means than the extension ladder to gain access to the worksite. The rule is a worker is “recalcitrant” if safety equipment is provided to worker by his employer & worker opts for no good reason not to use such equipment, resulting in the accident.

If worker is found to be “recalcitrant,” it is a defense to §240(1) action as worker is held to be proximate cause of the accident. While appellate decision not use the term “recalcitrant,” it appears it was the reason for denying plaintiff’s motion on §240(1).  

February 17. Labor Law §241(6). Industrial Code 23-1.20.  Chutes.

• Chute Enclosures.  Wooden or metal chutes used for the removal of material and debris from elevated levels of a building or other structure and which are at an angle of more than 45 degrees from the horizontal shall be entirely enclosed on all sides and the top, except for openings used for the receiving and discharging of material and debris.  Such necessary opening shall not exceed 48 inches in height, measured along the wall of the chute, and all openings shall be covered when not in use.  Chutes which are at an angle of 45 degrees or less from the horizontal may be open on the upper side. 
• Chute Construction.  Every chute more than 24 inches in maximum inside dimension shall be constructed of planking at least 2 inches thick full size, exterior grade plywood at least three-quarters inch thick or sheet metal at least three-sixteenths inch thick. Every chute shall have a metal bottom where the material or debris strikes the chute and every chute shall be rigidly supported throughout its height. A substantial gate shall be constructed and installed at the lower end of every loading chute to control the loading of material or debris into trucks and to cover the chute opening at all other times. Splash boards or baffles shall be installed on every chute to prevent materials or debris from rebounding onto the street, sidewalk or any other area adjacent to the discharge end of the chute.
• Protection at chute openings. A bumper or curb not less than 4 inches by 4 inches in section shall be provided at each chute opening where such opening is level with or below the level of the floor or platform. Every space between the chute and the edge of the opening in a floor or platform shall be solidly planked.
• Danger signs. AS sign reading, “DANGER”, shall be placed in a conspicuous location at the discharge end of every chute to warn persons employed in or lawfully frequenting the area of the chute of the potential overhead danger. Lettering on such signs shall be not less than 6 inches in height with letter strokes not less than three-quarters inch in width and shall be of such color as will contrast with the background.

Comment. Such code usually arises in the context of demolition where a no longer functioning elevator becomes a chute for debris removal. 

23-1.20(a) Violated

Second Dept.

Second Dept. 2021. 23-1.20(a) Applicable to debris ricocheting out of bottom of elevator shaft being used as chute for debris. Plaintiff working as laborer on demolition project. A former elevator shaft was converted into a debris chute for such demolition project.  Workers dumped debris into the chute from floors above.  Debris would accumulate at basement level.  While working at basement level near the shaft, plaintiff struck by bricks which ricocheted out of the bottom of shaft.  It was held 23-1.20(a) applicable to such accident. Rivas-Pichardo v. 292 Fifth Ave. Holdings, LLC, 198 AD3d 826;

Second Dept. 2008. 23-1.20 Violated. Plaintiff engaged in demolition work where old elevator shaft was used as chute for disposal of debris removed by workers on upper floors.  Plaintiff struck by wood falling into the elevator/chute. Parrales v. Wonder Works, 55 AD3d 579;

23-1.20 Dismissed

Second Dept.

Second Dept. 2014. 23-1.20 Not Factually Applicable. Fall From Ladder. Plaintiff fell from 6 foot A-frame ladder while engaged in construction work. Karanikolas v. Taverna, 120 AD3d 552;

Second Dept. 2010. 23-1.20 Not Factually Applicable. Struck by Debris While Standing at Ground Level. Plaintiff standing 10-18 feet away from dumpster was struck by bag of construction debris thrown from roof of a building. Fried v. Always Green, LLC, 77 AD3d 788;

Third Dept. Third Dept. 1998. 23-1.20 Not Apply to Wooden Planks Used to Unload Pipes From a Truck. While rolling pipes off a truck by a wooden ramp created by plaintiff & coworker, entire load of pipes rolled off the truck, with plaintiff being struck by a pipe.  The “chute” contemplated by 23-1.20 is in the nature of a conduit used to remove materials and debris from elevated levels of a structure down to a truck.  Held that 23-1.20 inapplicable to planks wedged against a truck & used for the purpose of unloading pipe. Curley v. Gateway Communications, Inc., 250 AD2d 888; 

February 17. New York. Labor Law §241(6). Industrial Code 23-1.13(b)(4). Electrical. Protection of Employees.

No employer shall suffer or permit an employee to work in such proximity to any part of an electric power circuit that he may contact such circuit in the course of work unless the employee is protected against electric shock by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means. In work areas where exact locations of underground electric power lines are unknown, persons using jack hammers, bars or other hand tools which may contact such power lines shall be provided with insulated gloves, body aprons and footwear.

Fourth Dept. 2019.    Winters v. Uniland Dev. Corp., 174 AD3d 1293;

23-1.13(b)(4) Sufficiently Specific to Support 241(6) Cause of Action

First Dept. 2022.  Henry v. Split Rock Rehab. & Health Care Ctr., 205 AD3d 540;

Fourth Dept. 2009. 23-1.13 Applies to persons employed in construction, demolition & excavation, to their employers,  owners, contractors & their agents, obligated to provide safe working conditions & safe places to work.  Court rejected contention 23-1.13(b)(4) & (5) not apply as such codes refer only to employers & employees.Johnson v. Ebidenergy, Inc., 60 AD3d 1419;

23-1.13(b)(4) Violated or Issue of Fact

Comment. 23-1.13(b)(3) & (4) can be violated when worker suffers electrical shock after coming into contact with a live wire while engaged in work. Liability lies with failing to de-energize such wires prior to work commencing.    

Terms Used in 23-1.13(b) Cases.

Junction Box. Defined as metal or plastic protective box where wires are interconnected. Junction boxes are found in walls, ceilings or concrete & can be indoors or outdoors. Junction boxes contain wires of different colors for different functions & circuits.

Splice Box. Is housing in which fiber optic cables begin or end. Splice boxes are also used to contain splices in underground cables & electric lines. Splice boxes are also used to protect spliced wire connections between an electrical control panel & pumping equipment.

De-energize. To disconnect from a source of electricity or to deprive of electrical energy.

Grounding. Is the process of removing excess charge from an object by transferring electrical charges from a short circuit between this object & another larger object.

23-1.13(b)(4) Violated or Issue of Fact

Worker struck by live wire.

Live wire hanging from ceiling.

Circuit not de-energized or grounded.

Whether protection equipment sufficient.

Precaution as to wires in junction boxes.

First Dept.

First Dept. 2023. Issue of Fact as to Applicability of 23-1.13(b)(3 & (4). Plaintiff electrocuted working in underground garage when chisel of jackhammer he was using came into contact with electrical conduit affixed in concrete column. Electricity in garage supposed to be turned off while demolition work being performed. Presence of live electrical conduit violation of Industrial Code 23-1.13(b)(3) & (4). However, other evidence suggesting electrocution resulted from loose wire striking plaintiff’s leg. With such conflicting evidence creating issue of fact, plaintiff not entitled to summary judgment on 241(6) cause of action. Ruiz v. Roosevelt Terrace Coop, Inc, 212 AD3d 487;

First Dept. 2019. 23-1.13(b)(4) Violation. Worker Struck by Live Wire. Defendants argued 23-1.13(b)(4) uses the word “or” to establish that a circuit can be rendered safe for workers by de-energizing & grounding OR guarding it by effective insulation or other means. Defendants thus contended that as wiring was insulated & housed in splice box with a screwed in cover, defendants complied with the code & not obligated to de-energize & ground the wiring.  However, while performing his work, plaintiff was permitted to come into contact with electrical circuit not de-energized. Plaintiff asked to disconnect electrical wiring throughout the office & to do so, needed to cut through the wires directly. As such, degree of insulation not relevant & circuit not guarded by other means. Wolodin v. Lehr Construction Corp., 177 AD3d 496;

First Dept. 2017. 23-1.13(b)(4) Violated Where Live Wires Hanging Down From Ceiling. Plaintiff’s deposition testimony & affidavit by plaintiff’s supervisor, who did not witness accident but arrived shortly thereafter, provided plaintiff performing work task of installing pins in drop ceiling when he received electrical shock.  Exposed, uncapped electrical wiring observed hanging from ceiling where plaintiff working. Coworker observed electricians who were working in building, come to accident site & capping exposed wires. Plaintiff awarded summary judgment on 23-1.13(3) & (4). Haynes v. Boricua Vill. Hous. Dev. Fund Co., 170 AD3d 509;

First Dept. 2017. 23-1.13(b)(3) & (4) Violated. Plaintiff’s Work Brought Plaintiff Into Contact With Live Electrical Wire. Violations of 23-1.13(b)(3) & (4) proximately caused injuries sustained by plaintiff when metal part of plaintiff’s safety harness contacted live electrical wire, known as BX cable, hanging down from drop ceiling of building under renovation. Owner & GC may be held liable for violations of those codes even though they impose obligations on employer, as they have a nondelegable duty to provide adequate safety protections. No evidence of comparative negligence as plaintiff pursuant to foreman’s instructions & neither knew nor should have known cable was electrified, in absence of warnings to avoid area. Rubino v. 330 Madison Co., LLC, 150 AD3d 603;

First Dept. 2017. Violation of 23-1.13(b)(4). Code requires workers who may come into contact with an electric power circuit be protected against electric shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means.”  As plaintiff was shocked, it demonstrated the circuit was not de-energized, grounded, or guarded by effective insulation. O’Leary v. S&A Elec. Contr. Corp., 149 AD3d 500;

First Dept. 2013.  Defendant’s SJ Motion Denied.  Electrical Cable not De-Energized And Protective Equipment not Provided. While plaintiff involved in project to excavate a roadway to install telecommunications equipment, he used a power saw to cut into a street intersection and struck a cable encased in a concrete conduit, owned by Con Ed, which electrocuted him.  Plaintiff raised issue of fact by submitting affidavits of two experts who explained that the cable was not de-energized, grounded, or effectively insulated, and that plaintiff was not provided with insulated protective gloves, body aprons and footwear while using a power saw that might make contact with underground power lines. Addonisio v. City of NY, 112 AD3d 554;

First Dept. 2013. Violation of 23-1.13(b)(4).  Plaintiff standing on A-frame ladder when struck on side of face by a live, energized & exposed electrical wire. As he pulled away from the wire, ladder wobbled & moved, causing a fall. Code sections 23-1.13(b((3) & (4) are clear & specific that before work is started, it is to be ascertained whether work will bring worker into contact with electric power circuit & if so, worker not be permitted to come into contact with the circuit without it being de-energized.  Here, live circuit in ceiling hit plaintiff in face & was proximate cause of accident.  DelRosario v. United Nations Federal Credit Union, 104 AD3d 515;   

Second Dept.

Second Dept. 2001. 23-1.13(b)(4) Not limited to incidents with actual contact with energized circuits.  Issue of Fact whether protective equipment sufficient where explosion occurred while electrical circuit energized. Bardouille v. Structuretone, Inc., 282 AD2d 635;

Third Dept.

Third Dept. 1999. Issue of Fact as to Violation of 23-1.13(b)(4) & (5). Whether Defendant Took Precautions as to Wires in Junction Box. While plaintiff tested electrical circuits & believed such circuits to have been de-energized prior to commencing his work, issue of fact was whether defendant violated 23-1.13(b)(4) by failing to take adequate precautions to ensure the wires in junction box with which plaintiff was working were properly de-energized. Adams v. Owens-Corning Fiberglass, 260 AD2d 877; 

Third Dept. 1997. 23-1.13(b)(4). Issue of fact. Plaintiff made decision to complete all pre-shutdown work while transformer remained energized. Finch, Pruyn & Co., Inc. v. M. Wilson Control Servs., Inc., 239 AD2d 814;

Amend Bill of Particulars to Add 23-1.13(b)(4)

First Dept. 1998.  No facts in addition to those alleged in plaintiff’s complaint or bill of particulars, or inquired into at his deposition, are or need to be alleged to make out a 23-1.13(b)(4) violation. Transit Authority’s own records indicated that the fire causing plaintiff’s injuries was caused by an explosion caused by a piece of equipment plaintiff was using coming into contact with the live third rail.    Snowden v. NYCTA, 248 AD2d 235;

No Evidence of Comparative Negligence Under 23-1.13(b)(4) First Dept. 2017. 23-1.13(b)(3) & (4) Violated. Plaintiff’s Work Brought Plaintiff Into Contact With Live Electrical Wire. Violations of 23-1.13(b)(3) & (4) proximately caused injuries sustained by plaintiff when metal part of plaintiff’s safety harness contacted live electrical wire, known as BX cable, hanging down from drop ceiling of building under renovation. Owner & GC may be held liable for violations of those codes even though they impose obligations on employer, as they have a nondelegable duty to provide adequate safety protections. No evidence of comparative negligence as plaintiff pursuant to foreman’s instructions & neither knew nor should have known cable was electrified, in absence of warnings to avoid area. Rubino v. 330 Madison Co., LLC, 150 AD3d 603;

February 16. Subcontractor Scaffold Company Failed to Show It Was Not a Statutory Agent of Premises Owner or GC as to Labor Law 240(1) & 241(6) Liability.

Galvez v. City of NY, 2026 NY Slip Op 30310(U), decided Jan. 2, 2026, Hon. Francis Kahn, Supreme Court, NY County. Plaintiff, employed by Technico Construction, injured at construction site when he jumped from extension ladder onto a sidewalk shed. Premises owned by NYCHA who contracted with Technico to perform exterior brickwork restoration & roofing replacement. Technico was hired by NYCHA as the GC. Technico subcontracted defendant CMC Environmental to perform asbestos work & also subcontracted with Roma Scaffolding.

Scaffold company, Roma, built the sidewalk shed at the direction of the GC, Technico. There was testimony that Roma builds sidewalk sheds according to plans prepared by a professional engineer that is typically retained by the GC. Once Roma completes the building of the scaffold, its workers leave the site, taking any ladders they used with them. Roma does not provide ladders for other workers at the site. Once Roma completes the installation of the sidewalk shed, the project’s GC maintains the shed.  

Here, Roma only provided its general standards & practices at project sites. Roma’s witness did not know any details from the subject project. There was no evidence as to who designed the sidewalk shed; when Roma’s work began at the project; when Roma completed installation; when Roma left the site; and whether Roma was ever called back to the site.

Comment. Subcontractors are hired by premises owner or GC, or even another subcontractor, usually by written contract or written agreement, to perform a specific portion of the work.

For a subcontractor to be liable under 240(1) or 241(6), it must be a statutory agent of the premises owner or GC. If not such a statutory agent, 240(1) & 241(6) claims are dismissed against the subcontractor. 

Subcontractors are statutory agents when delegated authority, by the premises owner or GC, to supervise & control injury producing work. Being delegated the authority, subcontractor is in a position of implementing safety measures for specific work being performed under its control & supervision.

Subcontractor a Statutory Agent of Premises Owner or GC. 240(1) & 241(6) Liability.

1. When control & supervision of work is delegated by written terms in a subcontract or agreement.

2. A particular job at work site is delegated to subcontractor. Subcontractor obtains from the premises owner and/or GC supervisory control & authority over the injury producing work.

3. Determinative factor is whether defendant had authority to exercise control over the work, not whether it actually exercised that right.

4.Where owner or GC delegates to a third party the duty to conform to requirements of the Labor Law, the third party is statutory agent.

5. When a subcontractor contracts out the work to another subcontractor, the initial subcontractor remains a statutory agent of the owner or GC. Statutory agent status is not removed because the subcontractor subcontracts out the work to another.       

Subcontractor Supervisory Control & Authority Over Work Being Performed

1. Control over the means and methods of the injury producing work.
2. Control over safety precautions for workers.

Court of Appeals

Statutory Agent to Owner of GC. 240(1) & 241(6) Liability.

Court of Appeals. 2015.As there was testimony that it was part of IMS’s responsibility to ensure a guardrail system was in place & manhole cover was replaced once the system was removed, issue of fact whether IMS was a statutory agent under 240(1).Barreto v. Metropolitan Transp. Auth., 25 NY3d 426;

Court of Appeals. 2005.Subcontractor deemed to be agent of owner or GC when it has ability to control work activity which brought about accident.Walls v. Turner Constr. Co., 4 NY3d 861

Court of Appeals. 1981. When the work … has been delegated to a third party, that third party then obtains the concomitant authority to supervise & control that work & becomes a statutory agent of the owner or GC. Only upon obtaining the authority to supervise & control does the third-party fall within the class of those having nondelegable liability as an agent under section 240 & 241. Russin v. Louis N. Picciano & Son, 54 NY2d 311 (1981).

Statutory Agent. Subcontractor Delegated Authority to Control & Supervise Injury Producing Work. 240(1) & 241(6) Liability.

First Dept.

First Dept. 2022. Defendants Taconic & W5 subject to vicarious liability under Labor Law 240(1) as statutory agents of One City Block, owner of construction site, as these 2 entities had authority to supervise & control the work that brought about accident. Corleto v. Henry Restoration Ltd., 206 AD3d 525;

First Dept. 2022. As JA had authority to supervise & control injury producing work, it was liable as statutory agent under 240(1) and 241(6). Winkler v. Halmar Intl., 206 AD3d 508;

First Dept. 2020. Contractor was statutory agent. Martone was given authority to control the activity bringing about the injury. Martone’s foreman testified that Martone provided temporary protection against drain holes while awaiting plumbers to install permanent protection. It used limestone for such purposes and the foreman was responsible for ensuring such bags were in place until the installation of the permanent protection. Wenk v. Extell W. 57^th St., LLC, 188 AD3d 550;

First Dept. 2018. Labor Law 240(1) and 241( 6) impose absolute liability on owners, contractors and their agents for a statutory violation, regardless of whether they directed or controlled the work.  As such, the test of whether defendant is a statutory agent subject to Labor Law liability under such sections is not whether it actually supervised the work, but whether it had the authority to do so. While Continental’s resident manager may have been unaware of what tasks Rose Associates was performing as Continental’s managing agent, no evidence Rose Associates lacked such authority. Merino v. Continental Towers Condominium, 159 AD3d 471;  

First Dept. 2012. Evidence showed P&P was statutory agent of owner. P&P had plenary authority over the work at the site, including work being performed by plaintiff at time of accident. Testimony of P&P’s owner riddled with contradictions & memory failure. Although owner & his brother both worked at the site, owner could not recall whether P&P hired either company or day laborers to assist them with the job. Owner offered no explanation as to how plaintiff came to be performing a portion of the work P&P had agreed to perform for Charmer. Muriqi v. Charmer Indus. Inc., 96 AD3d 535;

Subcontractor Responsible For Road Safety Conditions

First Dept. 2022. Contractor Was Statutory Agent. J&A was delegated authority to control the activity bringing about the injury, including responsibility to provide barriers, flagmen, & to post danger signs. Plaintiff struck by excavator. Herrera v. Kent Ave. Prop. III LLC, 203 AD3d 512;

Electrician

First Dept. 2020. As ADCO delegated authority to control electrical work giving rise to plaintiff’s injury, it was statutory agent subject to liability under statute. Higgins v. TST 375 Hudson, LLC, 179 AD3d 508;

First Dept. 2017. As Petrocelli Electric, electrical contractor, remained on the job site & the dangerous condition arose from the work delegated to Petrocelli Construction, which it was in a position to control, it was an agent of owner and/or GC subject to liability under 241(6). Schaefer v. Tishman Constr. Corp., 153 Ad3d 1169; 

Scaffold Rigger

First Dept. 2012. Licensed Rigger of Scaffolds. Plaintiff & 2 coworkers were assigned to work together on 50 foot suspended scaffold that broke in two. Defendant contractors were aware scaffold had a two man capacity & that 3 workers were nonetheless assigned to work together from the scaffold & that there was no other adequate safety equipment made available to workers. Liberty, as the only licensed rigger of the scaffolds on the job site, a statutory agent for purposes of 240(1). Liberty had obligation to supervise & control conduct of workers that manned the scaffolds.  Nenadovic v. PT Tenants Corp., 94 AD3d 534;

Subcontractor & Its Sub-Subcontractor Both Agents Under 240(1)

First Dept. 2022. 240(1) Liability. Statutory Agent. Plaintiff pulling floor bluffing machine up a ramp placed over stairs when top part of the ramp came loose and slid down the other 2 sections, taking plaintiff and buffing machine to the sidewalk. Accident occurred on front steps of a church undergoing renovation. Church retained defendant McGovern as GC & McGovern retained plaintiff’s employer. Church contracted with Peragallo for refurbishment of its pipe organ & Peragallo retained Marshall to transport the pipe organ back to the church from Peragallo’s warehouse. Marshall constructed the ramp for transporting organ. Held that Peragallo was statutory agent of church as church delegated refurbishing & transporting of organ to Peregallo & contract between them stated Peragallo “shall be responsible for and shall supervise and direct all the work.” Peragallo then delegated transport portion of work to Marshall who had authority to supervise & control the work, including assembly of the ramp. Both Peragallo & Marshall liable under 240(1). Royland v. McGovern & Co., LLC, 203 AD3d 677;

First Dept. 2012. Plaintiff, an electrician, was employed by Petrocelli, installing cables for security system at post office. Performing such work, plaintiff fell from A-frame ladder. Defendant ADT hired to install closed circuit televisions & ADT subcontracted wiring aspect of job to Petrocelli. ADT was statutory agent of US Marshalls Service, which hired ADT for installation of security system. ADT had authority to supervise and control work being done by plaintiff pursuant to terms of subcontract with federal government. ADT demonstrated this authority by subcontracting a portion of such installation to plaintiff’s employer. Fact that Petrocelli possessed concomitant or overlapping authority to supervise the wire installation did not negate ADT’s authority to supervise and control installation of wires. Whether ADT actually supervised plaintiff was irrelevant. Tuccillo v. Bovis Lend Lease, Inc., 101 AD3d 625;  

First Dept. 2011. Sub-Contractor Having Authority Over Subcontractor Was Statutory Agent of GC. Plaintiff fell 15 feet through unprotected hole in floor of construction site. Insufficient safety devices provided to plaintiff. Century had contractual supervisory authority over work performed by its subcontractor, Rebar, plaintiff’s employer, & was therefore a statutory agent of construction manager, Tishman, even if it did not exercise that supervisory authority with respect to plaintiff’s particular task. Burke v. Hilton Resorts Corp., 85 AD3d 419;

Second Dept.

Authority to Exercise Control & Supervision Over Injury Producing Work

Second Dept. 2024. Lemark failed to demonstrate it was not an agent of the GC, Blue Water, for purposes of liability under 240(1) and 241(6). Lemark failed to demonstrate it lacked ability to supervise & control the work that resulted in the accident. Issue of fact as to role GC & Lemark played in the renovation work, which entity was supervising plaintiff & which entity supplied the ladder causing the accident. Moran v. Trustees of Columbia Univ. in the City of NY, 224 AD3d 830;  

Second Dept. 2022. A party is deemed to be agent of owner or GC under Labor Law when it has the ability to control the activity bringing about the injury. Southerton v. City of NY, 203 AD3d 977; 2021. Kavouras v. Steel-More Contr. Corp., 192 AD3d 782;

Second Dept. 2017. To hold defendant Munoz liable as contractors or agents for 240(1) liability and 241(6) there must be a showing Munoz had the authority to supervise and control the work. Determinative factor is whether party had the right to exercise control order the work, not whether it actually exercised that right. Munoz failed to establish it was not agent of owners or contractors. Johnsen v. City of NY, 149 AD3d 822; 

Second Dept. 2016.  A party is deemed an agent of owner or GC under Labor Law when it has supervisory control & authority over the work being done where a plaintiff is injured. Scales v. Trident Structural Corp., 142 AD3d 1153.

Framing Company

Second Dept. 2022. Framing Company.  Section 240(1) Liability as Statutory Agent of Owner or GC. Plaintiff performing framing work on a building under construction when he stepped on unsecured wooden beam, which flipped over & fell out from underneath him, causing him to fall 15 feet to the floor below. Plaintiff made prima facie showing of entitlement to judgment on 240(1) action by submitting transcript of his deposition testimony, his affidavit, & affidavit of coworker witnessing the accident. Evidence showed defendants failed to provide plaintiff with adequate safety devices. South Ocean Framing Corp. was a statutory agent of owner & GC as it had the authority to supervise and control particular work in which plaintiff was engaged at time of accident. Mogrovejo v. HG Hous. Dev. Fund Co., Inc., 207 AD3d 457;

Plumbing Company

Second Dept. 2018. Plaintiff demonstrated NY Plumbing had authority to exercise control over plaintiff’s work, even if it did not actually do so.  As such, NY Plumbing proper defendant under Labor Law. Padilla v. Park Plaza Owners Corp., 165 AD3d 1272;

Asbestos Abatement Company

Second Dept. 2018. Plaintiff fell from a ladder while engaged in asbestos abatement work at a high school. Plaintiff made a prima facie showing of 240(1) liability through his deposition testimony, which demonstrated that the ladder on which he was working moved for no apparent reason. School district contracted with Arrow Steel to replace windows and doors and perform asbestos abatement work. Arrow Steet contracted with plaintiff’s employer, E&A, to perform asbestos work. Arrow Steel had authority to enforce safety standards and chose subcontractor for asbestos work. Also, Arrow Steel directly retained plaintiff’s employer, E&A, & having authority to exercise control over the work, even if it did not actually do so. Arrow Steel was agent of owner & subject to 240(1) liability. Cabrera v. Arrow Steel Window Corp., 163 AD3d 758; 

Subcontractor Supplying Scaffold

Second Dept. 2014. 240(1) Liability. Where owner or GC delegates duty to conform to requirements of the Labor Law to subcontractor, subcontractor becomes statutory agent of owner or GC.Scaffold supplied by painting subcontractor pursuant to its agreement with GC. To hold defendant liable as agent of GC for violations of 240(1) and 241(6), must be a showing subcontractor had authority to supervise & control the work. Determinative factor is whether entity had the right to exercise the work, not whether it actually exercised that right. Where owner or GC delegates duty to conform to requirements of Labor Law to third-party subcontractor, such subcontractor becomes statutory agent of owner or GC. Here, subcontractor supplying scaffold to be used, testified he asked GC for authority to supervise & control plaintiff’s use of scaffold. As such, subcontractor agent of GC. Van Blerkom v. America Painting, LLC, 120 AD3d 660;

Fourth Dept.

Rogers v. DS Restoration & Residential Servs. Co., 2026 NY Slip Op 00725, decided Feb. 11, by Fourth Dept. Plaintiff fell while cleaning gutters at a residential home. DS Restoration & Residential Services & Lenard Dabney named as defendants. It was held defendants failed to establish that they were not “contractors” within the meaning of §240(1).Court cited appliable rules:

“An entity is a contractor within meaning of §240(1) and §241(6) if it had the power to enforce safety standards & choose responsible subcontractors.” Steigman v. Barden & Robeson Corp., 162 AD3d 1694 (4^th Dept. 2018).

“Core inquiry is whether defendant had the authority to supervise and control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition.” Steigman.

Defendants status as contractors is dependent on their right to exercise control, not whether they in fact did so.” Barker v. Union Corrugating Co., 187 AD3d 1544 (4^th Dept. 2020).        

Defendants submitted evidence that property owner, defendant Pokszywka, hired defendant DS Restoration & Dabney to work on the gutters. Plaintiff testified that Dabney asked plaintiff if plaintiff could assist him with the job of cleaning the gutters. Although no written contract between Dabney & plaintiff, plaintiff testified there was a verbal agreement similar to prior jobs where Dabney would pay plaintiff in cash for his work. Based on such evidence, triable issue of fact whether defendants had authority to exercise control over the work & thus were contractors within §240(1) and §241(6).   

Fourth Dept. 2010. Electrical Subcontractor Statutory Agent of GC. 240(1) Liability. Plaintiff fell from ladder at construction site upon receiving electrical shock. Tambe electrical contractor at site. Subcontractor such as Tambe will be liable as agent of GC for injuries sustained in those areas & activities within scope of the work delegated to it. Pursuant to its subcontract with GC, Tambe responsible for temporary wiring & for safety of its work & work area. Martinez v. Tambe Elec., Inc., 70 AD3d 1376;

Fourth Dept. 2004. 240(1) Liability Imposed. Subcontractor Had Supervision & Control Over Work Area, a Crawl Space.  Statutory Agent of GC. Plaintiff sustained burn/inhalation injuries from an explosion while he was using a torch to solder copper joints in a crawl space. Mader contended it did not have a nondelegable duty pursuant to 241(6).  Subcontractor such as Mader is liable as agent of GC for injuries sustained in those areas & activities within scope of the work delegated to it. Mader failed to meet its burden of not having supervision or control of the safety of area involved in incident. Pursuant to its contract with Ciminelli, Mader responsible for crawl space insulation & for safety of its work & work area. Mader also responsible for clean-up & removal of all debris caused by its operations. Court held Mader had control over plaintiff’s work. Piazza v. Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059;

While No Control Over Plaintiff, Control Over Accident Site. 240(1) Liability.

Fourth Dept. 2012. While No Control Over Plaintiff’s Work, Control Over Accident Area. Wachs hired plaintiff’s employer as GC to rebuild strip mall owned by Wachs. Wachs also hired Scott Quick Construction to repair the roof. At time of accident, Quick had started the roof repair but left the job site to work on project in another state. Upon arriving at work, plaintiff informed roof was leaking and ruining newly installed drywall. Plaintiff went to roof and found roofing membrane Quick had left hanging over side of the building had folded over from the wind, causing water to pool on the flat of the roof and to flow into building. Plaintiff pushed the membrane back over the side of the building and swept the water off the roof. Several hours later, the membrane had again folded over and plaintiff returned to the roof. At this time plaintiff fell from the roof. It was held that Quick was agent of owner, Wachs. While Quick had no control over plaintiff’s work, it had control over area where plaintiff was injured. As plaintiff was asserting defective condition of work site rather than the manner of the work, Quick had to establish had no supervision or control of the accident area. Rast v. Wachs Rome Dev., LLC, 94 AD3d 1471; 

February 16. New York. Contractual Indemnification. Interpreting Indemnification Clause Phrase, “Including, by way of description, but not by way of limitation.” Doctrine, “unius est exclusion alteris” Not Apply.

Bucur v. Term Fulton Realty Corp., 2026 NY Slip Op 30308, decided Jan. 28, Hon. Sabrina Kraus, Supreme Court, NY County. Plaintiff, employed by  Choice NY Property Management, LLC (Choice), alleged he fell from a ladder while repairing a ceiling in a laundry room. Term Fulton, the building owner, leased the building to 56 Fulton Street LLC, who retained Choice to perform work and provide management & staffing service at the building. Such Management Agreement obligated Choice to indemnify the owner against any liability by reason of any gross negligence or willful misconduct or fraud or professional errors or malfeasance by Choice …

In addition, Choice agreed to indemnify the owner for claims brought by Choice’s employees arising from, or in connection with, such employee’s employment with Choice, including, by way of description, but not by way of limitation, any claim arising out of, related to any violation of applicable laws regulations, including without limitation, Title VII of the Civil Right Act of 1964 …

As to the indemnification clause’s second paragraph, “claims brought by Choice’s employes arising from employee’s employment with Choice,” it was held plaintiff’s claim arose from an accident while completing a task in the scope of employment with Choice. However, Choice asserted the language in the indemnification clause that followed “claims in connection with employee’s employment,” referring to employment discrimination, provided no obligation to indemnify the owner for plaintiff’s accident.

Court cited the doctrine expression unius est exclusion alteris, which provides that where a sophisticated contract drafter omits a term the court should not imply that term from the general language of the agreement. The Management Agreement expressly includes the phrase “including, by way of description, but not by way of limitation,” preceding the list of employment discrimination claims. Such phrase “directly evidences the parties’ intent not to limit the claims to the employment discrimination claims listed in the second paragraph” of the indemnity clause. As such the expression unius est exclusion alteris not apply.Comment. Indemnification clause here contained language not typically used in such clauses. The clause here included employment discrimination claims. However, the phrase “including, by way of description, but not by way of limitation,” is contained in other indemnification clauses. Such phrase provides that enumerating a certain act(s) is not limiting the indemnification obligation to such act(s).           

February 16. New York. Labor Law §241(6) Action.

Industrial Code 23-1.7. Protection from overhead hazards. 241(6) Action Dismissed.

(a) Overhead hazards.

(1) Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection. Such overhead protection shall consist of tightly laid sound planks at least 2 inches thick full size, tightly laid three-quarter inch exterior grade plywood or other material of equivalent strength. Such overhead protection shall be provided with a supporting structure capable of supporting a loading of 100 pounds per square foot.

Comment. 23-1.7(a)(1) requiressuch areas must be “normally exposed” to falling material or objects. How often does something have to fall in an area for the area to be “normally exposed” to falling objects? Or is the question whether falling objects usually result from the type of work being performed?  Where steel pipes or wooden planks are being cut, does that make the area below “normally exposed” to falling objects even though no previous pipes or planks fell? 23-1.7 states “normally exposed.” Depending upon the work being performed above, a worker may be normally exposed” even though no objects fell before the accident.        

23-1.7(a) Sufficiently Specific to Support 241(6) Cause of Action

First Dept. 2009. Clarke v. Morgan Contr. Corp., 60 AD3d 523; 1998. Murtha v. Integral Construction Corp., 253 AD2d 637;

Second Dept. 2006. Portillo v. Roby Anne Dev., 32 AD3d 421; 2004. Zervos v. City of NY, 8 AD3d 477;  

Fourth Dept. 2007. Roosa v. Cornell Real Prop. Servicing, Inc., 38 AD3d 1352; Fourth Dept. 1999. Sears v. Niagara County Ind. Dev., 258 AD2d 918;

Distinguishing 23-1.8(c)(1) & 23-1.7(a)(1)

Second Dept. 2009. Unlike 23-1.7(a)(1), 23-1.8(c)(1) not require the accident site be normally exposed” to falling material, but instead provides that “every person required to work or pass within any area where there is danger of being struck by falling objects or materials … shall be provided with and shall be required to wear an approved safety hat.” Marin v. Ap-Amsterdam 1661 Park, 60 AD3d 824; 

23-1.7(a)(1) Dismissed.

First Dept.

First Dept. 2024. Plaintiff’s reliance on 23-1.7(a)(1) was misplaced as such code not apply given that the overhead planking protection called for under 23-1.7(a)(1) would interfere with plaintiff’s ability to perform his work stripping forms from the ceiling.  The decision cited the Court of Appeals’ holding in Salazar v. Novalex Contr. Corp., 18 NY3d 134 (2011) where plaintiff and other workers were laying a concrete floor in a basement. Plaintiff was directed to pour and spread concrete over entire basement, including trenches. Plaintiff when he was walking backwards across the floor he stepped into a trench filled with concrete. There was no barricade around the trench. In dismissing the 240(1) action it was held that installing a barricade around the subject trench “would have been contrary to the objectives of the work plan in the basement.”  “Put simply, it would be illogical to require an owner or GC to place a protective cover over, or otherwise barricade, a 3-4 foot deep hole when the very goal of the work is to fill the hole with concrete.” Urquia v. Deegan 135 Realty LLC, 2024 NY Slip Op 05080;

Also, Deegan decision held plaintiff not offer sufficient proof to show the overhead protection specified in 23-1.7(a)(1) was needed, as there was no proof workers were required to work or pass through the basement floor under construction, or that the area was normally exposed to falling material or objects. Urquia v. Deegan 135 Realty LLC, 2024 NL Slip Op 05080;

First Dept. 2019. 23-1.7(a)(1) Dismissed. Plaintiff struck by as fixture that dislodged & not from debris that may have been falling from ceiling demolition. Djuric v. City of NY, 172 AD3d 456;

First Dept. 2012. 23-1.7(a)(1) Dismissed. While in elevator pit preparing to dismantle components of an elevator, the “selector tape” a thin strip of metal snapped, cutting his hand. Plaintiff not subject to overhead hazard of falling objects. Garcia v. DPA Wallace Avenue I, LLC, 101 AD3d 415;

First Dept. 2012. 23-1.7(a) Dismissed. As plaintiff was dismantling a scaffold, a piece of the scaffold suddenly fell, striking plaintiff. Griffin v. Clinton Green S, LLC, 98 AD3d 41;

First Dept. 2007. 23-1.7(a)(1) Dismissed. Elevator counterweights fell on plaintiff. Where object unexpectedly falls on a worker in an area not normally exposed to such hazards, 23-1.7(a)(1) not apply. Buckley v. Columbia, 44 AD3d 263; 

First Dept. 2007. 23-1.7(a)(1) Dismissed. Not applicable to stationary hoists. Plaintiff struck with a load of cinder blocks that became loose & fell on him as it was being hoisted from a flatbed truck by a fork boom & lowered onto a pallet near where he was standing. Gonzalez v. Glenwood Mason Supply, 41 AD3d 338;     

First Dept. 2006. 23-1.7(a)(1) Dismissed. Mason tender struck when cement blocks from a newly completed wall fell on him at a construction site. Favia v. Weatherby Constr. Corp., 26 AD3d 165;

First Dept. 2002. 23-1.7(a) Dismissed. Plaintiff struck by piece of metal inside a wall separating 2 rooms dislodged & fell on his hand as he prepared to patch a hole that was cut in the wall. Quinlan v. City of NY, 293 AD2d 262;

Second Dept.

Second Dept. 2024. 23-1.7(a) Dismissed. Fire extinguisher falling from beam. While backfilling the foundation at a construction site, a fire extinguisher that was resting unsecured on a beam 20 feet above plaintiff, fell, striking plaintiff in the head. A cause of action alleging a violation of 241(6) predicated upon a violation of 23-1.7(a) requires plaintiff to demonstrate the area in which plaintiff was injured was one where workers normally exposed to falling objects. Defendants established the area here was not normally exposed to falling material or objects within meaning of 23-1.7(a). Flores v. Fort Green Homes, LLC, 227 AD3d 672;

Second Dept. 2023. 23-1.7(a) Dismissed. Plaintiff was laborer tasked with clearing debris from first floor of building being demolished. Ductwork attached to first floor ceiling became detached on one end and fell 18 inches, causing dirt and pebbles to fall into plaintiff’s left eye. 23-1.7(a) inapplicable as accident area not normally exposed to falling material or objects within the meaning of the code.   Cruz v. 451 Lexington Realty, LLC, 218 AD3d 733;

Second Dept. 2023. 23-1.7(a) Dismissed. Demolition Site. Construction worker was struck in the head by a piece of wood during demolition of a house. A piece of wood became dislodged from a wall. Defendants established work site was not a place normally exposed to falling material or objects. Reyes v. Sligo Constr. Corp., 214 AD3d 1014; 

Second Dept. 2020.Plaintiff failed to demonstrate working area was normally exposed to falling material or objects. While plaintiff was walking through a basement where he was working, a piece of plywood that had just been pried off the ceiling by another worker struck plaintiff. Crichigno v. Pacific Park 550 Vanderbilt, 186 AD3d 664; 

Second Dept. 2017. 23-1.7(a) Dismissed. Falling of exhibition booths. While plaintiff performing

electrical work at Javits Center, 2 panels comprising the walls of exhibition booth fell on him.  Honeyman v. Curiosity Works, Inc., 154 AD3d 820;

Second Dept. 2016. 23-1.7(a)(1) Dismissed. Top of 10-foot high piece of cold board that plaintiff was fitting into a wall frame of a building under construction, snapped forward, coming into contact with brim of plaintiff’s hard hat. No evidence such area was normally exposed to falling objects. Vatavuk v. Genting NY, LLC, 142 AD3d 989;  

Second Dept. 2013. 23-1.7(a) Dismissed. Worker at school construction site was standing on the ground outside the school when he was struck by a piece of sheetrock falling from third floor of school building. Defendants established accident area not normally exposed to falling materials or objects. Moncayo v. Curtis Partition Corp., 106 AD3d 963;

Second Dept. 2010. 23-1.7 Dismissed. Plaintiff, while standing outside a construction project 10-18 feet away from a dumpster was struck by a bag of construction debris tossed from roof. Fried v. Always Green, LLC, 77 AD3d 788;

Second Dept. 2009. 23-1.7(a)(1) Dismissed. 2 Prior Falling Backets Not Sufficient For Violation. Plaintiff injured while installing a drainpipe on exterior of 6-story apartment building. A metal bracket which was attached near the top of building became dislodged, striking plaintiff. There was no overhead protection. Held that although 2 other brackets fell from building prior to plaintiff’s accident, was not a sufficient basis to find work site was normally exposed to falling brackets.  Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824;   

Second Dept. 2007. 23-1.7(a) Dismissed. Section of ceiling collapsed. While performing interior demolition work, piece of ceiling collapsed, striking plaintiff. 23-1.7(a) dismissed as area not area where workers normally exposed to falling objects.Mercado v. Brooklyn, 38 AD3d 732;

Second Dept. 2006. 23-1.7(a)(1) Dismissed. Plaintiff struck by steel beam being removed from a partially demolished building.  Not struck in area where workers were normally exposed to falling objects. Portillo v. Roby Anne Dev., 32 AD3d 421;

Third Dept.

Third Dept. 2025. 23-1.7(a)(1) Dismissed. Plaintiff working in pit when struck by a wooden board a coworker intentionally threw into the pit, striking plaintiff. Defendant showed the pit area was not normally exposed to falling materials or objects and “in any event, plaintiff was working only 4-5 feet below grade. As such, defendant demonstrated the overhead protection regulation was not applicable. James v. Marini Homes, LLC, 2025 NY Slip Op 00132;

Third Dept. 2004. 23-1.7(a)(1) Dismissed as no evidence masons were normally exposed to falling objects. Plaintiff struck by 2 concrete blocks that fell from a stack of blocks on the level above him. McLaughlin v. Malone Tate Builders, Inc., 13 AD3d 859;

Fourth Dept.

Fourth Dept. 2011. 23-1.7(a) not apply as no evidence the area in which plaintiff was working was normally exposed to falling material or objects within meaning of 23-1.7(a). Timmons v. Barrett Paving Materials, Inc., 83 AD3d 1473;

Fourth Dept. 2005. 23-1.7(a)(1) Dismissed. Demolition worker struck by piece of partition wall that was partially demolished from floor above. Plaintiff’s work site an area not normally exposed to falling material or objects. Perillo v. Lehigh Construction Group, Inc., 17 AD3d 1136; 

Fourth Dept. 2004. 23-1.7(a)(1) Dismissed. Factually Inapplicable. Plaintiff struck by telephone messenger cable that he was attaching to utility poles. Greenough v. Niagara Mohawk Power Corp., 13 AD3d 1160;

Fourth Dept. 2003. 23-1.7(a)(1) Dismissed. A backhoe used to dig a trench was 30 feet from plaintiffwhen it dislodged an abandoned gas line pipewhich fell on plaintiff. Gampietro v. Lehrer McGovern Bovis, 303 AD2d 996;    

Fourth Dept. 1999. 23-1.7(a)(1) Dismissed. Angle Clip Slipped Down Column Striking Plaintiff. No evidence worksite was normally exposed to falling materials or objects. Plaintiff working on erection of temporary tube column to constructing addition to building. Column was set into place with a crane & plaintiff was bolting the base of column. Column equipped at the top with adjustable steel lug or angle clip used to hold bar joists to the roof. Angle clip slipped about 15 feet down the column striking plaintiff. Sears v. Niagara County Ind. Dev., 258 AD2d 918;  Fourth Dept. 1995. 23-1.7(a)(1) Dismissed. Inapplicable. Before the accident, plaintiff & coworkers placed a metal window curtain frame on a wall where it was to be installed. Plaintiff struck by metal curtain frame. Klien v. County of Monroe, 219 AD2d 846; 

February 15. New York. SUBCONTRACTORS. CONTRACTUAL INDEMNIFICATION.

Subcontractor. No Obligation to Indemnify Owner/GC. Subcontractor Not Create Dangerous Condition or Have Notice of Dangerous Condition.

Comment. Indemnification language required owner/GC establishing subcontractor’s negligence in the performance of its work. In absence of evidence of subcontractor negligently performing its work, subcontractor not obligated to indemnify owner/GC.

First Dept.

No Evidence Subcontractor’s Work Performed Negligently.

First Dept. 2022. Indemnification Claim Dismissed. Subcontractor’s Work Not Negligent. No evidence Pier Head negligent in performance of its contract with Titanium so as to trigger indemnification clause of parties’ subcontract. Unambiguous language expressly limited Pier Head’s indemnity obligation to where Pier Head’s negligence was responsible for plaintiff’s accident. Peranzo v. WFP Tower D. Co., 201 AD3d 486;

No Evidence Subcontractor’s Flooring Work Negligently Performed

First Dept. 2024. Indemnification Denied. Defendants offered no evidence that either Hi-Tech & Consolidated Carpet were negligent such to support defendants’ claims of common-law indemnity & contribution. Defendant Structure Tone’s project supervisor testified Hi-Tech & Consolidated Carpet’s work would be inspected by Structure Tone prior to their leaving the floor & they would not be permitted to leave until all holes in the raised floors properly covered. Scaffold wheel fell through Masonite covering into uncovered hole, 2 weeks after Hi-Tech & Consolidated Carpet left the floor. Court also found accident occurred in connection with Island’s working that plaintiff was performing work under Island’s contract with Structure Tone at time of accident. Agard v. Port Auth. of NY & NJ, 227 AD3d 404;  

 Lighting Fixture Not Improperly Installed

First Dept. 2021. Indemnification Claim Dismissed. Lighting Fixture Installation. No evidence accident arose out of work of third party defendant OH&M. Accident occurred before OH&M installed light fixture in part of ceiling grid where plaintiff working. Also, plaintiff testified light fixture nearby fell because he grabbed ceiling grid as he fell. No evidence light fixture fell because OH&M installed it improperly. Hogan v. 590 Madison Ave., LLC, 194 AD3d 570;

Accident Not Arise From Subcontractor’s Work. Hoisting Work Exempted From Subcontract.

First Dept. 2019. Contractual claim dismissed against J&E, finding accident not arise out of work performed by J&E, which played no role in crane’s maintenance or operation. Fact that load that would have been hoisted absent collapse was J&E materials, & that plaintiff, a J&E employee, was one of injured parties, insufficient to find accident connected to J&E’s work, especially where hoisting was activity specifically exempted from contract between J&E & its prime contractor. DeGidio v. City of NY, 176 AD3d 452;

Scaffolding Not Improperly Installed

First Dept. 2016. Indemnification Claim Dismissed. Scaffolding Installation. Plaintiff, through his testimony, established he fell off scaffolding frame onto scaffolding platform when scaffold moved while attempting to remove a staple from plastic covering on building exterior while propping himself up on cross brace of a frame. He had climbed onto cross brace as staple was 6 feet above his reach when he stood on platform. Owner’s contractual indemnification claim against Everest, a subcontractor installing scaffolding, dismissed in absence of negligence on Everest’s part in performance of its work. DaSilva v. Everest Scaffolding, Inc., 136 AD3d 423;

Subcontractor Not Create Dangerous Condition

First Dept. 2022. Indemnification Claim Dismissed. City of NY’s claim against SQP, a third party defendant, dismissed. SQP did not construct or maintain barricade railing system, nor did its employes remove part of top rail over which plaintiff fell. SQP also not supervise or control plaintiff’s work. As such, accident not arise out of SQP’s work so as to trigger contract’s indemnification provision on that ground. Nor did SQP, which submitted evidence of complying with its contractual obligation to daily inspect site for hazards, act negligently as to trigger indemnification provision. Harris v. City of NY, 202 AD3d 624;

No Misuse or Improper Maintenance of Crane

First Dept. 2015. Indemnification Claim Dismissed. Crane Collapse. Owners claim for contractual indemnification against subcontractor denied. Indemnity clause stated Sorbara would indemnify DeMatteis & 1765 First for losses that occur “by reason of the acts or omissions of Sorbara or anyone directly or indirectly employed by Sorbara in connection with the Work.” No evidence crane collapse occurred because of act or omission on its part. Sorbara leased crane from defendant NY Crane & Equipment Co. That fact alone not trigger indemnification clause. Nor was NY Crane indirect employee of Sorbara. Insufficient evidence offered as to whether crane misused by Sorbara operator or improperly maintained by Sorbara’s employees. Matter of 91^st St. Crane Collapse Litig., 133 AD3d 478;

Subcontractor Not Proximate Cause of Accident. Merely Furnished Occasion For Accident.

First Dept. 2012. Indemnification Claim Dismissed. Proximate Cause of Accident. Defendants asserted Tiegre negligent in failing to instruct plaintiff not to use driveway exit through which he entered building under construction which was reserved solely for supervisors of contractors & subcontractors. However, where plaintiff struck by a cinder block dropped off sixth floor, violation of failing to instruct plaintiff from using exit not proximate cause of accident but merely furnished condition or occasion for occurrence. Anton v. West Manor Constr. Corp., 100 AD3d 523;

Siguencia v. Hudson Cos., Inc., 2026 NY Slip Op 00598, decided February 5, 2026, appellate court, First Dept. Plaintiff awarded summary judgment on his Labor Law §240(1) action where he was struck by several 250-pound, 9-foot unsecured doorframes falling from a wall at construction site. Premises owner & GC brought a third party action against a hoist company. However, appellate decision held there was no evidence hoist company had anything to do with the storing of such doorframes at the work site. Absent evidence, third-party action was dismissed as it was based on speculation.

The indemnification clause of the contract obligated the hoist company to indemnify the premises owner & GC “for any and all claims … arising in whole or in part and in any manner from injury and/or death of person caused by or resulting from the Hoist Company’s acts, omission, breach or default” in the performance of the subcontract work. The appellate court interpreted such language as requiring fault by the hoist company in order to trigger its indemnification obligation under the contract. Again, as there was no showing of negligence by the hoist company, third-party action seeking contractual indemnification was dismissed by appellate court.        

First Dept. 2019. Indemnification Claim Dismissed. Plaintiff’s employer not negligent. Building’s dangerous condition cause of accident. Plaintiff installing window washing scaffold or rig on roof of building owned by Plaza. Defendant building retained plaintiff’s employer, Global, to perform such work. While plaintiff walking on metal catwalk partially dismantled & no longer in use, section of grating of catwalk collapsed, causing fall 18-20 to roof below. As Global not own building or install catwalk, Global no duty to maintain catwalk. No evidence Global or plaintiff knew catwalk unsafe. Plaza personnel never instructed Global employees not to use catwalk. Also, Plaza put up no warning signs as to using catwalk. Fact that Plaza not supervise work irrelevant as accident arose from dangerous premises. Plaza failed to warn Global of hazard. Plaza’s contractual indemnification claim dismissed. Contract required Global to indemnify Plaza from claims “arising out of or resulting from the performance of the Work … except to the extent caused by the sole negligence of any such Indemnitees.” No evidence Global or plaintiff acted negligently. On the other hand, accident due to Plaza’s sole negligence. Powers v. Plaza Tower, LLC, 173 AD3d 446;

Beyond Subcontractor’s Contracted Work

First Dept. 2018. Indemnification Claim Denied. Debris. Owner defendants not entitled to common law indemnification or contribution from contractors as no evidence contractors negligent. As subcontractor Alfa not negligent & because its subcontract required it to indemnify owners only from damages arising from Alfa’s work & caused by Alfa’s negligence, owner defendants not entitled to contractual indemnification from Alfa. Plaintiff stepped into a hole obscured by garbage as he stepped off ladder. Licata v. AB Green Gansevoort, LLC, 158 AD3d 487;

Subcontractor Not Create Debris Hazard

First Dept. 2008. Indemnification Claim Dismissed. Debris. Dangerous condition not arise from subcontractor’s work. GC, Marquise Construction, obligated to hire & supervise laborers to clean work site. Allstar, electrical subcontractor, had no such duty & not create hazardous condition causing plaintiff to slip & fall on staircase. GC recognized subject wall compound droppings & dust left behind by sheet-rocking subcontractor were safety hazard & such conditions were recurring. As no evidence Allstar contributed to plaintiff’s fall, Allstar had no contractual indemnification obligation to GC. Paltie v. Marquise Constr. Corp., 49 AD3d 380;

Debris

First Dept. 2012. Indemnification Claim Dismissed. Debris. Plaintiff, ironworker employed by Pre-Fab claimed that as he & another worker were moving steel beams, he slipped & fell on plastic debris located on sand surface. Construction project was to build indoor tennis facility. Owners contracted with JH Mack to be GC & JH Mack contracted with Pre-Fab to perform steel work. JH Mack’s contractual indemnification claim dismissed against Pre-Fab as no evidence Pre-Fab negligently supervised plaintiff’s work or otherwise contributed to accident. Plaintiff’s testimony as to source of plastic debris speculative & insufficient to raise issue of fact. Contractual & common law indemnification claims dismissed. Cohen v. NYC Indus. Dev. Agency, 91 AD3d 416;

Other Subcontractors Performing Work in Same Area. Speculation.

First Dept. 2017. Indemnification Claim Denied. Speculation. Other trades performing work in accident area. Contractual & common law indemnification & contribution claims dismissed against Mazzeo. Theory that Mazzeo negligently installed wiring in accident area more than one year before accident occurred was speculative, in light of other work performed by other subcontractors in the period following completion of Mazzeo’s work. Rubino v. 330 Madison Co., 150 AD3d 603;

First Dept. 2017. Indemnification Claim Denied.  Other Subcontractor May Have Created Dangerous Condition. Plaintiff fell through unprotected stairwell opening in floor in course of installing display shelving during store renovation. Premises owner & lessee submitted evidence not negligent & not supervise or control means & methods of plaintiff’s work. Owner’s principal submitted affidavit that Inter-Next retained to remove pull-up door over stairwell & stairwell opening always covered by plank or board. Inter-Next asserted no direct evidence it removed door or plank, its written contract not require removal of door & other contractor at site could have caused stairwell opening to be uncovered. While circumstantial evidence to support finding Inter-Next removed pull-up door, insufficient to eliminate issues of fact as to whether Inter-Next negligent as to unguarded floor opening. Given evidence stairwell opening covered by board or plank & other subcontractor’s employees went down to basement while working, factfinder could conclude floor’s unguarded condition not caused by Inter-Next. Nunez v. LMJ Vision, Inc., 148 AD3d 496;

Dangerous Condition Unrelated to Subcontractor’s Work 

First Dept. 2009. Indemnification Claim Dismissed. Plaintiff, employee of GC, assigned to remove debris from roof. Ramp connecting roof to exterior elevator was removed & to access roof, plaintiff climbed over parapet wall D’Aprile in process of constructing, landing on unsecured plywood planking covering hole in roof, falling through roof. D’Aprile’s subcontract, requiring it to construct parapet wall, did not require access to or work on roof & not impose a duty to provide plaintiff with safe means of accessing roof. Even if D’Aprile removed ramp to perform its work, & no evidence it did remove ramp, & even if removal of ramp & location of commencement of construction of wall forced plaintiff to climb over wall in a place placing him close to hole in roof, plaintiff not performing work even remotely related to D’Aprile’s masonry work & ramp was neither instrumentality for which D’Aprile responsible, nor a tool or material needed by D’Aprile to perform its work. Plaintiff injured not because ramp removed, but because someone removed secure covering over hole that everyone, including plaintiff, thought was still in place & replaced it with unsecured plywood. Pepe v. Center for Jewish History, Inc., 59 AD3d 277; 

Owner Supervised Building’s Window Washers

First Dept. 2008. Indemnification Claim Dismissed. Owner Responsible For Supervision of Window Washers. In action by window washer, employed by Triangle, injured working on powered work platform, maintained by defendant Otis, known as Wall Glider, at high rise building owned & managed by Trump defendants. Otis established Wall Glider operating properly on accident day based on testimony of plaintiff, Otis’s resident mechanic & Otis’s expert. Plaintiff’s claims platform’s armatures had history of disengaging from indented vertical mullions (vertical bar between the panes of glass in a window) in windy conditions or because of weight distribution, not implicate negligence on part of Otis. Trump’s own witness asserted mullions permanently affixed to building & not maintained by Otis as part of Wall Glider equipment. Trump-Otis contract limited to maintenance & excluded provision of major parts such as gearing, ropes, brakes, armatures, etc. As such, it was Trump’s responsibility, not Otis’s, to supervise work of window washers & supply them with equipment. Matthews v. Trump 767 Fifth Ave., LLC, 50 AD3d 486;

Mere Leasing of Equipment to Site Subcontractor

First Dept. 2007. Indemnification Claim Dismissed Against Equipment Lessor. Crane Lessor. While plaintiff standing on partially elevated boom of crane, crane moved, causing a fall. Indemnification claim against owner of crane, NY Crane, dismissed. NY Crane merely leased crane to Williams, it did not employ crane operator & had no supervisory control over operator or work being performed. As such, NY Crane could not be liable for operator’s negligence. NY Crane was no more than lessor of crane. NY Crane had no employees on site & did not direct or control operation of crane. Mahoney v. Turner Constr. Co., 37 AD3d 377;

Second Dept.

Second Dept. 2017. Indemnification Claim Dismissed. As owners failed to establish subcontractors negligent in connection with accident, owners failed to establish their contractual indemnification claim. Poalacin v. Mall Props., Inc., 155 AD3d 900;

Site Fence Blown Over Was Not Used in Subcontractor’s Work

Second Dept. 2017. Indemnification Claim Dismissed. Subcontract between NASDI & GC, Conti, required NASDI to indemnify Conti for all injuries caused by resulting from, arising out of, or occurring due to NASDI’s negligence in connection with its work or work area. NASDI established plaintiff’s accident not arise from NASDI’s negligence in connection with its work or work area. Plaintiff struck by chain-link fence which was blown over at Staten Island Ferry Terminal in Staten Island. Plaintiffs were NASDI employees performing construction work at terminal. Chain-link fence installed by GC Conti. Gurewitz v. City of NY, 175 AD3d 658;

Subcontractor No Obligation of Snow Removal

Second Dept. 2013. Indemnification Claim Dismissed. Snow & Ice. Accident Not Arise From Sub-Contractor’s Work at Premises. Plaintiff fell in driveway from ice. Plaintiff employed by Marble & Tile Corp, subcontractor hired by TMA Construction. Contract between TMA & Marble required Marble to indemnify TMA “from and against all claims, damages, losses and expenses … arising out of or resulting from performance of Marble’s work, but only to extent caused by negligent acts or omissions of Marble.” As Marble established plaintiff’s accident not caused by negligent acts or omissions of Marble, indemnification clause not triggered. Marble no obligation of snow removal. Mikelatos v. Theofilatidis, 105 AD3d 822;

Subcontractor Not Supervise or Control Injury Producing Work

Second Dept. 2016. Indemnification Claim Dismissed. Subcontractor Not Supervise or Control Injury Producing Work. While working as welder, plaintiff fell through purposefully designed opening in platform floor temporarily covered with piece of plywood. United Baking was premises owner. United purchased oven through Dunbar Systems & hired Dunbar to install oven. Dunbar subcontracted such work to C&C & C&C made plywood cover & installed it over opening. United failed to establish accident arose solely from method or manner of work performed & not from dangerous condition of premises. United, as owner, also failed to establish it did not create allegedly dangerous condition & not have actual or constructive notice of such condition. Dunbar demonstrated not involved with constructing plywood cover & not direct, supervise, or control work giving rise to accident. Owner’s contractual and common law indemnification claims against Dunbar dismissed. Chilinski v. LMJ Contr., Inc., 137 AD3d 1185;

Subcontractor’s Work of Building CVS Store Not Negligent

Second Dept. 2009. Indemnification Claim Denied. Subcontractors’ Work Not Negligent. In 2003, Jato Building Contractors entered into construction contract with defendant CVS in which Jato was to build a CVS store. Contract’s indemnification clause stated, “to defend, indemnify and hold harmless CVS … from and against all claims, damages, losses and expenses … arising out of or resulting from … any negligence or tortious act or omission” on its part in the construction process. CVS sued when patron slipped & fell caused by negligent design of handicapped access ramp outside CVS store. CVS failed to establish accident resulted from negligent or wrongful act or omission on part of Jato. CVS’ motion for contractual indemnification against Jato denied. Bryde v. CVS Pharmacy, 61 AD3d 907;

Subcontractor Exited Site Months Before Accident

Second Dept. 2015. Indemnification Claim Dismissed. Subcontractor Left Site Months Before Accident.  FASA’s contractual indemnification obligation limited to claims, damages, losses & expenses caused in whole or in part by its negligent acts or omissions.FASA established dismissal of indemnification claim by establishing plaintiff’s accident not caused in whole or in part by negligence on its part. FASA established it did not create dangerous condition allegedly causing accident; that it completed its work in the accident area 4 months before accident, that it cleared area of debris & received no complaints of condition of area. Tolpa v. One Astoria Square, 125 AD3d 755;  

Mere Claim of Negligence Insufficient to Trigger Indemnification

Second Dept. 2010.It could not be clearly implied from language of indemnification agreement between Masterbuildrrs & Urban Outfitters that parties intended for Masterbuilders to indemnify Urban Outfitter based merely on claim that Masterbuilders was negligent, without establishing such negligence. Alfaro v. 65 West 13^th Acquisition, LLC, 74 AD3d 1255;

Third Dept.

Subcontractor Not Supervise Injury Producing Work

Third Dept. 2022. Motion for indemnification denied. Subcontractor not supervise plaintiff’s work. Heritage, premises owner sought indemnification from Dupuis, contractor hired to install sheetrock at premises. Dupuis subcontracted work to Wall-Tech, plaintiff’s employer. No finding Dupuis negligent at the time of summary judgment motions. Owner argued plaintiff sole proximate cause of accident. No evidence Dupuis supervised, controlled or directed plaintiff’s work. Dupuis not in same room after plaintiff set up his equipment. As such, Dupuis may not have been actively negligent. Motion for indemnification deemed premature. Morin v. Heritage Bldrs. Group, 211 AD3d 1138;

Subcontractor Not Assume Continuing Burden

Third Dept. 2008. Indemnification Claim Denied. Subcontractor Not Assume Continuing Burden After Having Completed Its Work. Indemnification clause related to builder Quay’s obligation to comply with applicable laws & ordinances during its work in order to complete work contemplated in Agreement. This interpretation is in harmony with other parts of Agreement, which includes separate clause for indemnification as to damages to persons or property caused by Quay during its performance of the work. As contractor Quay did not assume a burden plaintiff falling from ramp 14 years after Quay completed construction of the ramp. Luby v. Rotterdam Square, LP, 47 AD3d 1053;

Fourth Dept.

Fourth Dept. 2024. Indemnification Denied. Issue of Fact. Huber was subcontractor hired to install exterior wall systems. Plaintiff employed by Huber. Plaintiff injured handling the wall panels. Premises owners & construction manager sought contractual indemnification from Huber. Indemnification provision required accident arise out of Huber’s work but only if accident resulted from Huber’s negligence. While premises owner & construction manager not supervise or control injury producing work & were therefore not negligent, such entities failed to show plaintiff’s injuries arose from negligence of Huber or Huber’s subcontractors. Issues of fact existed. Lamarr v. Buffalo State Alumni Assoc., 2024 NY Slip Op 03965;

Fourth Dept. 2023. Issue of Fact. While working on construction project and walking between job assignments, plaintiff slipped & fell on ice. Plaintiff sued Dominion Energy, premises owner and LMC Industrial, the GC. Both defendants sought contractual indemnification from plaintiff’s employer, O’Connell Electric. O’Connell’s obligation was to indemnify for claims arising from the performance of its work but only if caused by its negligent acts. Defendants failed to eliminate all triable issues of fact whether plaintiff’s claims arose from O’Connell’s negligence. Holler v. Dominion Energy Transmission, 221 AD3d 1491;    

Fourth Dept. 2024. Indemnification Denied. Issue of Fact. Red Rose Landscaping entered into contract with Source Facility to remove snow & ice from parking lot. Indemnification clause required Red Rose to indemnify Facility Source and its customers for claims arising out any act or omission of Red Rose and failure of Red Rose to perform the services in accordance with generally accepted industry & professional standards. While evidence showed Red Rose serviced the parking lot at 3:00 am on the day of the accident, there was no evidence as to what services were performed at that time. No evidence offered as to the weather temperature at that time or whether sufficient amount of snow had fallen that would have required Red Rose to perform its contractual duties. Issue of fact whether there was a triggering event requiring Red Rose to indemnify Facility Source. Garcia v. Black Sea Props., LLC, 227 AD3d 1486;     

No Evidence of Subcontractor’s Negligence Fourth Dept. 2014. Indemnification Claim Dismissed. Premises owner, 60 Grider not entitled to conditional order of contractual or common law indemnification from contractor Consolidated as owner 60 Grider failed to show Consolidated negligent, as required by indemnification clause. Foots v. Consolidated Building, 119 AD3d 1324;

February 15. New York. Third Party Beneficiary Indemnification Status

Comment. Entity not specifically named in indemnification agreement may still be entitled to indemnification if it is an intended beneficiary of such indemnification agreement.  

A third party asserting rights as third party beneficiary must establish:

Existence of valid & binding contract between other parties;

Contract was intended for the third party’s benefit; and

Benefit to the third party is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate the third-party if the benefit is lost.

Fourth Dept. 2021. Corter-Longwell v. Juliano, 200 AD3d 1578;  

Fourth Dept. 2021. Distinguishing Intended Beneficiary & Incidental Beneficiary. Third party is an intended beneficiary rather than merely an incidental beneficiary when circumstances indicate the promisee intends to give the beneficiary the benefit of promised performance. Corter-Longwell v. Juliano, 200 AD3d 1578;

Court of Appeals

Court of Appeals. 2018. Premises Owner Not Intended Beneficiary. With respect to construction contracts, Court has generally recognized express contractual language stating contracting parties intended to benefit a third party to enforce a promisee’s contract with another. This rule reflects particular nature of construction contracts & the fact that, as is the case here, there are often several contracts between various entities, with performance ultimately benefitting all of the entities involved.  City of NY not intended beneficiary as the City was not only entity that could recover under the subject contract as DASNY, the contracting party also brought its own breach of contract claim. Also, subject contract not expressly name City as intended 3^rd party beneficiary nor enforce the City to enforce any obligations thereunder. Dormitory Auth. of the State of NY v. Samson Constr. Co., 30 NY3d 704;

First Dept.

First Dept. 2024. Premises Owner Not Intended Beneficiary. Owner’s breach of contract claims based on contractual indemnification dismissed as owner not a party to the contract between defendants & subcontractor at the construction site where the accident occurred, nor was owner intended third party beneficiary under such contract. JDS Constr. Group LLC v. US Crane & Rigging LLC, 224 AD3d 582;   

First Dept. 2024. Tremont/Joy defendants were not third party beneficiaries of indemnification provisions in subcontracts that did not mention them and of which they were not signatories. Indemnification provisions should be strictly construed & should not be judicially rewritten to create obligations that were not unambiguously stated therein. Weidtman v. Tremont Renaissance Housing Dev. Fund Co., 224 AD3d 488;

First Dept. 2021. Premises Owner Not Intended Beneficiary. St. Valentine denied contractual indemnification as it was not included as the named “owner” in the indemnification agreement. Also, no evidence it was a third party beneficiary of agreement between tenant & contractor. There was nothing in the agreements suggesting St. Valentine, premises owner, intended to be named indemnitee & St. Valentine’s failed to establish it proffered any consideration in order to be considered a party to the agreement. St. Valentine not know about construction project & not entitled to enforce indemnification provision in tenant’s agreement with contractor. Benitez v. Church of St. Valentine Williamsbridge NY, 171 AD3d 593;

First Dept. 2016. Not Intended Beneficiary. Broadway not entitled to contractual indemnification by Knight since indemnification clauses on which it relies are contained in contracts to which it was not a signatory & in which it was not named as an indemnitee. Nor was there any basis for a finding that Lime & Knight intended Broadway to be third party beneficiary of their subcontract, which referred to a different entity as the property owner & did not mention Broadway. Nazario v. 222 Broadway, LLC., 135 AD3d 506;

First Dept. 2015. Not Intended Beneficiary. Resident Engineer Not “Other Contractor” & Thus Not Intended Beneficiary.  Unicorn entered into contract with City of NY to perform certain work on 149^th Street bridge in Queens. Gandhi Engineering was City of NY’s contracted resident engineer on same bridge rehabilitation project, & claimed to be third party beneficiary of Unicorn’s contract with City of NY.  Issue was whether Gandhi was “Other Contractor” within meaning of Unicorn’s contract with City of NY, which Unicorn must indemnify for any damages arising from its acts or omissions. Unicorn’s contract section, “Coordination With Other Contractors,” distinguishes between “Other Contractors” & “Engineer,” whose responsibility is to coordinate the work of Unicorn & other contractors. Such contract section not include Gandhi as “Other Contractor” whom Unicorn must indemnify. City of NY v. Gandhi Eng’g, Inc., 128 AD3d 497;

First Dept. 2015. Not Intended Beneficiary. Contract Not Provide Entity Intended Beneficiary. Proposed cross claims by City defendants against JB Electric for contractual indemnification lack merit as contractual provisions relied upon are in a subcontract to which requesting defendants are not signatories & contract not provide they are indemnitees. Also, contract expressly precludes a finding that City defendants are third party beneficiaries. Sicilia v. City of NY, 127 AD3d 628;

First Dept. 2009. Not Third Party Beneficiary. GC Granite’s claims for indemnity & breach of contract against subcontractor Miller dismissed, as Granite & Miller not in contractual privity with each other & purchase orders constituting agreements between Grand Mechanical & Miller not make Granite third party beneficiary thereof, nor do such agreements incorporate by reference terms of contract between Granite & Grand Mechanical. Vargas v. NYC Tr. Auth., 60 AD3d 438;   

First Dept. 2004. Not Intended Beneficiary. As to indemnification, prime contract between Schroder & Dolner entitles only Schroder to defense & indemnification & there is no basis for extending such contractual rights to Equitable, who is not in contractual privity with Dolner. Various other contractual documents under which Equitable seeks indemnification are either ambiguous or dependent upon findings of negligence. Fernandes v. Equitable Life Assurance, 4 AD3d 214; 

Second Dept.

Second Dept. 2020. Entities Were Third Party Beneficiaries. Costs of Relocating Utilities. Plaintiff relied upon language in contract’s Article 39 that contract provisions are not intended for benefit of third parties unless otherwise specifically provided. A fair reading of the contract reveals intent to benefit utility owners such as Keyspan defendants and AT&T defendants by providing compensation for their utility relocation expenses. As such, the boilerplate language that no third party beneficiaries contract language is unenforceable against them, as the contract otherwise manifests an intent to benefit & afford contractual rights to third parties incurring expenses in relocating utilities. The contract provisions providing for reimbursement of ARTC for utility relocation costs paid to third parties, which included utility owners, would be rendered meaningless if they were not intended to benefit utility owners performing relocation work. Port Auth. of NY & NJ v. Brooklyn Union Gas Co., 179 AD3d 1106;   

Second Dept. 2019. Not Intended Beneficiary. LTI, plaintiff’s employer, was subcontractor of third party defendant Fahey, Inc., the GC at construction site. Owner & tenant brought third party action against LTI.  Third party action dismissed as subcontract between LTI and GC, Fahey, not require LTI to indemnify owner & tenant. Also, owner & tenant failed to show they were intended third party beneficiaries of indemnification agreement between LTI & Fahey. Chong Fu Huang v. 57-63 Greene Realty, 174 AD3d 777;

Second Dept. 2002. Consultants at Work Site Not Third Party Beneficiaries. Consultants asserted they stood in same position as other consultants & terms of insurance procurement provision of construction contract requiring HSP to obtain liability insurance coverage for all consulting engineers indicated an intent to benefit them. However, such consultants failed to show they were intended third party beneficiaries of insurance procurement provision of construction contract. Perron v. Hendrikson, 292 AD2d 361;

Third Dept.

Third Dept. 2008. Not Intended Beneficiary. Plaintiffs claimed third party beneficiary status because of highway work permit & contract between Telergy & Wilde for work performed. As highway permit not constitute a contract, plaintiff may not claim third party beneficiary status. Also, safety provisions of contract between Telergy & Wilde not reveal they were meant to encompass accidents arising from subcontractor’s repair of its own equipment such as to extend protection to plaintiff as intended third party beneficiary. Plaintiff’s contract action dismissed. Allen v. Telergy Network Servs., Inc., 52 AD3d 1094;  

Third Dept. 1997. Intended Beneficiary. Plaintiff entered into contract with Wilson Control to remove & replace transformer at one of facility’s power plant substations. Wilson hired MLB Industries to perform certain work for this project. MLB’s employee caused a facility-wide power outage, disrupting facility’s manufacturing operation. Plaintiff was intended beneficiary of MLB’s subcontract agreement with Wilson & as such, could maintain breach of contract action against MLB for property damages. Identify of third party beneficiary need not be specifically set forth in a contract. Subcontract required MLB to directly perform at plaintiff’s facility for Wilson in order to satisfy Wilson’s obligations to plaintiff. Such circumstances evidence clear intent by Wilson, as promisee, to give plaintiff benefit of promised performance. As such, plaintiff intended beneficiary of subcontract between Wilson & MLB. Finch, Pruyn Co. v. M. Wilson Control Serv., 239 AD3d 814;

Fourth Dept.

Fourth Dept. 2024. Intended Beneficiary. Slip & fall in parking lot owned by Balk Sea Properties & leased by Pep Boys who contracted with Facility Source to manage property. Facility Source entered into Service Provider Agreement (SPA) with third party defendant Red Rose for snow removal services. Pep Boys, as Facility Source’s customer, was intended third party beneficiary of indemnification provision of SPA as a matter of law. As such, Red Rose’s assertion that Pep Boys not entitled to contractual indemnification based on lack of privity, rejected by court. Garcia v. Black Sea Props., LLC, 227 AD3d 1486;   

Fourth Dept. 2015. Intended Beneficiary. Canisius established it was third party beneficiary of contract between Active & Lehigh Construction Group by showing existence of valid & binding contract between other parties; contract was intended for Canisius’s benefit & benefit to Canisius was sufficiently immediate, rather than incidental, to indicate assumption by contracting parties to compensate Canisius if the benefit is lost. Court rejected contention Canisius not intended beneficiary as contract refers to “the Owner” rather than referring to Canisius by name. It is almost inconceivable that Active which rendered its services in connection to major construction project, would not contemplate performance of its contractual obligations would ultimately benefit owner of the development. Beasock v. Canisius College, 126 AD3d 1403;  

Fourth Dept. 2012. Not Intended Beneficiary. Exxon not covered by indemnification agreement between Hughes & Atlanta. Such agreement expressly negated any intent to indemnify third-party beneficiaries, including Exxon. Zolfaghari v. Hughes Network Sys., LLC, 99 AD3d 1234;   Fourth Dept. 2001. Not Intended Beneficiary. Plaintiff slipped & fell on ice in parking lot owned by Widewaters & leased to K-Mart. Widewaters contracted with defendant KBH Construction for snow removal services. K-Mart relied upon contract between KBH and Widewaters to support its cross claim against KBH. As a third party seeking to enforce a contract, K-Mart had to establish it was intended beneficiary  of the contract rather than merely an incidental beneficiary. K-Mart failed to met that burden. In any event, even if K-Mart could enforce the contract, contract provided for the indemnification of Widewaters, not K-Mart. DiSano v. KBH Construction Co., 280 AD2d 951;

February 14. New York. Labor Law §240(1).  While Injury Sustained From Repair Work is Within Protection of §240(1), Maintenance Work is Not. Work Performed to Gutter. Issue of Fact Whether Repair or Maintenance.  

Rogers v. DS Restoration & Residential Servs. Co., 2026 NY Slip Op 0725, decided Feb. 11, 2026, Fourth Dept.  Plaintiff fell from ladder while cleaning gutters at a house. Homeowner thought birds were nesting behind a gutter. Defendants testified such work consisted primarily of cleaning gutter & when one of defendants discovered a hole in a fascia board, left worksite to purchase piece of flashing to cover the hole, which would not entail moving the gutter. While he was away from the house, plaintiff climbed a ladder to continue cleaning the gutter. When birds stirred in the hole, plaintiff shifted his weight on a ladder, causing ladder to slide & plaintiff to fall.

Defendants submitted affidavit of engineer who opined the hole or space at the top of fascia board is common issue caused by wear & tear. Plaintiff testified cleaning work of the gutter incidental to more extensive repair work. Such work entailed cleaning the gutter, removing the gutter, removing & replacing fascia board & then reinstalling the gutter.  

Appellate Court denied defendants’ motion holding issue of fact whether plaintiff engaged in routine maintenance by installing flashing to a hole that developed due to normal wear & tear or whether such work was necessary to restore proper functioning of the roof & gutter.

Comment. Issue is whether worker suffered accident while engaged in repair work, which provides 240(1) protection, or whether engaged in maintenance work, which does not provide 240(1) protection. Such repair work, to be covered within §240(1), requires a fall from an elevated height. If plaintiff falls from elevated height while engaged in maintenance work, 240(1) action is dismissed.

“Delineating between routine maintenance & repairs is frequently a close, fact driven issue & such distinction depends upon whether item being worked on was inoperable or malfunctioning prior to commencement of work & whether work involved replacement of components damaged by normal wear & tear.”

Where a person is investigating a malfunction, efforts in furtherance of that investigation are protected activities under 240(1).

To qualify  as “repair” work, it cannot be work arising out of wear & tear.

Inspection of integral part of the building in furtherance of repairing apparent malfunction is within 240(1) protection.

Repair Work. 240(1) Liability Imposed.

First Dept.

Drain Pipe Repair

First Dept. 2023. 240(1) Liability Imposed. Plaintiff went to repair a drain pipe on HVAC unit that required to be removed & reset at a correct angle. Extension ladder collapsed. Owner & tenant failed to raise issue of fact as to whether plaintiff performing routine maintenance rather than a repair. Absence of work ricket not controvert plaintiff’s testimony as work tickets only prepared after work was performed and plaintiff injured before he began work. Manfredonia v. 750 Astor LLC , 217 AD3d 573;

Replacing Glass Panels

First Dept. 2014. 240(1) Liability Imposed. Replacing Cracked Glass Panels in Skylight of Church Steeple Repair Work. Plaintiff & 3 coworkers sent by employer to replace cracked glass panels in skylight of defendant church’s steeple. To access steeple, plaintiff placed 14 foot extension ladder belonging to his employer on top of roof of church, leaning against steeple. Plaintiff used such ladder on 3 prior occasions without incident. As plaintiff climbed ladder, bottom of ladder “kicked out.”  Plaintiff submitted affidavit that in his many years as a glazier, skylight panels such as the ones he was replacing not crack or even wear out over time & could have remained in place sans repair or replacement  indefinitely, unless some unusual event caused them to crack or break. As glass panels not being replaced because of wear & tear, & because of plaintiff’s 30 years of being a glazier, he was competent to state the replacement of glass panels was repair work, not routine maintenance. Soriano v. St. Mary’s Indian Orthodox Church of Rockland, Inc., 118 AD3d 524;

Electrical/Wiring

First Dept. 2021. Hardwiring. 240(1) Liability Imposed. Plaintiff fell from unsecured ladder that suddenly moved as he reached overhead to hardwire a new smoke and carbon monoxide detector to replace an inoperable hardwired smoke detector that he had just removed. Such work constituted “repair” within 240(1). Rodriguez v. Milton Boron, LLC, 199 AD3d 537;

First Dept. 2007. Repairing Electrical Wiring. Plaintiff, building engineer, in process of repairing & replacing electrical wiring in order to restore lighting to entire floor, at time ladder collapsed on which he was standing. Rios v. WVF-Paramount 545 Prop., LLP, 36 AD3d 511;

Reconfiguring Cable Equipment to Utility Pole

First Dept. 2021. Plaintiff’s work replacing damaged cable equipment & reconfiguring its support system using J-hooks & anchors affixed to utility pole amount to repairs and/or alteration to equipment. Villalta v. Consolidated Edison, 197 AD3d 1078; 

Repairing Light Fixture

May 15. §240(1) Imposed For Accident Occurring During Replacing Canopy’s Pendent Lights. Such work not routine maintenance.

Rivas v. Panama Leasing, LLC, 2025 NY Slip Op 03000, First Dept. decision issued on May 15, plaintiff fell from an elevated working platform that did not allow him to reach safely  overhead & operate drills to remove old, inoperable globe light fixtures and, while the power was off, detaching the electrical wires from the old fixture, then re-wiring a new replacement light fixture into place, followed by drilling holes into the canopy’s concrete surface to permit screws to affix the new, smaller size fixture into place & placing a lightbulb cover onto the replacement fixture.

Such work involved a repair of the canopy’s pendent lights that entailed work beyond routine maintenance.  As such, 240(1) liability imposed.

First Dept. 2022. 240(1) Liability Imposed. Retrofitting Light Fixtures. Plaintiff established defendant’s liability to 240(1) through plaintiff & his coworker’s affidavit that an unstable 80 foot A-frame ladder, which was missing rubber feet, shifted, causing a fall.  Plaintiff also established that his work of retrofitting light fixtures was covered under Section 240(1) & not constitute mere maintenance. Laporta v. PPC Commercial LLC, 204 AD3d 538;

Second Dept. 2010. Repairing Light Fixture. 240(1) Liability Imposed. Plaintiff fell from stepladder which broke while he was in process of removing a ceiling light fixture in order to repair. Plaintiff’s testimony showed engaged in repair work, as he testified was in process of removing light fixture from ceiling so that it could be repaired after realizing problem not merely a burnt out bulb. That light fixture eventually repaired by replacement of component part thereof not obviate that fixture had to be removed from the ceiling to accomplish such repair. Also, repaired part was not one which regularly wore out in normal course of wear & tear. Nowakowski v. Douglas Elliman Realty, LLC, 78 AD3d 1033;

Roof

First Dept. 2016. 240(1) Liability Imposed. Fall from ladder while repairing leaky roof.Kolenovic v. 56^th Realty, LLC, 139 AD3d 588;

First Dept. 2011. 240(1) Liability Imposed. Roof Inspection “Repair Work.”  Plaintiff was doing a walk through on the roof, assessing what repairs were necessary and the materials that would be required. As plaintiff stopped near the middle of the roof, the roof started to buckle causing him to fall to his right side and land on his knee. The roof sank 2 inches at this location. The roof began leaking a year before the accident. Court rejected that plaintiff was involved in routine maintenance, which is not covered activity under 240(1). At a minimum, plaintiff integral part of repair work. Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1.

First Dept. 2004. 240(1) Liability Imposed. Replacing Roof Tiles Not “Routine Maintenance.” Thework plaintiff’s employer was hired to perform, replacing loose & broken slate roof tiles, cleaning gutters, installing new copper flashing & repairing a roof leak, not routine maintenance under 240(1).  Velasco v. Green-Wood Cemetery, 8 AD3d 88;

Elevator

First Dept. 2016. 240(1) Liability Imposed. Elevator Fell on Elevator Repairman. Elevator repairman, employed by Brink, injured when elevator fell on top of him inside of building. Plaintiff engaged in repair work as elevator’s safety shoes not operating properly & condition isolated event, unrelated to normal wear & tear. Also, elevator a falling object within meaning of Labor Law, even though it was not actually being hoisted or secured, as it required securing for purposes of the repair work.  McCrea v. Arnlie Realty Co., LLC, 140 AD3d 427;

Response to Pumping Station Flooding Condition

First Dept. 2013. Response to Flood at Pumping Station Constituted a “Repair.” In course of his work, plaintiff fell into steam manhole during a nor-easter. He landed in pool of boiling water up to his chest.  It was held plaintiff engaged in a repair under 240(1) as he was called upon to address a flooding condition that exceeded capacity of a pumping station. Dos Santos v. Consolidated Edison of NY, Inc., 104 AD3d 606;

Replacing Subway Rails

First Dept. 2011. Replacing Subway Rails as Part of Capital Improvement Project. Not Routine Maintenance. Plaintiff & crew installing new subway track that was part of subway modification project. Plaintiff & crew attempting to “strip” & remove a rail. Deposition testimony established rails at issue being removed for purpose of upgrading subway signal system & not because they were worn & that general context of work was 5-year capital improvement project. Such factors raise issues of fact against a finding plaintiff engaged in routine maintenance.  Medina v. City of NY, 87 AD3d 907;

Climbing Ladder in Response to Alarm

First Dept. 2002. 240(1) Liability Imposed. Response to an Alarm to Integral Building Part. Not Routine Maintenance. Plaintiff climbed water tank ladder, atop the building roof, in response to an alarm, indicating something was wrong.  Not routine maintenance of water tank. Inspection of integral part of the building in furtherance of repairing an apparent malfunction is within 240(1). Caraciolo v. 800 Second Avenue Condominium, 294 A.D.2d 200;

Second Dept.

Electrical/Wiring

Second Dept. 2017. 240(1) Liability Imposed. Removing Cable Wire From Building Walls. Plaintiff, a field technician for Verizon, was assigned to remove old cable from exterior walls of building.  While standing on ladder performing such work, ladder started to shake & lean to the left, causing a fall. Defendant failed to offer evidence that plaintiff performing merely routine maintenance as opposed to a repair pursuant to 240(1). Barone v. 1116 Ave. H. Realty, LLC, 151 AD3d 928;

Second Dept. 2007. Plaintiff hired to rewire a telephone system. Plaintiff was running wires in attic crawl space, as directed by defendant, when he fell through a sheet rock ceiling. Such work constituted “alteration” work under 240(1). Becker v. ADN Design Corp., 45 AD3d 711;

Second Dept. 2011. 240(1) Liability Imposed. Replacing Transformer in a Store. Plaintiff’s employer hired to replace bulbs & transformers in 78 overhead light fixtures, located 12 feet above floor.  Plaintiff fell from ladder engaged in such work. Held that when viewed in isolation, task of replacing transformer might be considered routine maintenance. However, as plaintiff assigned to perform general electrical work, plaintiff engaged in repair work. Fox v. H&M Hennes & Mauritz, LP, 83 AD3d 889;

Light Fixtures

Second Dept. 2019. 240(1) Liability Imposed. Plaintiff’s testimony went to repair of lighting poles. Not routine maintenance. Plaintiff fell from atop 8-foot wooden A-frame ladder while working on light fixture at Nassau Coliseum. While plaintiff’s testimony provided that some of lighting poles only required tightening or replacement of a light bulb, more intensive work also required on other lighting poles to make them function. This fell within “repairing” a light fixture., within scope of 240(1). Wass v. County of Nassau, 173 AD3d 933;

Second Dept. 2006. 240(1) Liability Imposed. Replacing photo cell in light fixture. Plaintiff fell from ladder while engaged of restoring lighting to a parking lot on premises owned by State of NY. A ladder was used to replace a neglected lighting fixture located on a pole in the lot with another fixture that would accept long-lasting, incandescent bulb. Plaintiff used ladder to access roof of shed adjacent to photo cell needing replacement. Photo cell automatically controlled parking lot lighting. While replacement of photo cell was mere routine maintenance, replacement of light fixture on lighting pole was repair work. Fitzpatrick v. State of NY, 25 AD3d 755;

Door

Second dept. 2007. 240(1) Liability Imposed. As plaintiff was repairing a non-functioning door, he was engaged in type of repair work covered under 240(1). Lofaso v. JP Murphy Assoc., 37 AD3d 769;

Replacing Door Track

Second Dept. 2008. 240(1) Liability Imposed. Fall from ladder while working in pit of elevator replacing a door track. Covered under 240(1). Riccio v. NHT Owners, LLC, 51 AD3d 897;  

Roll-Up Gate at Store Entrance

Second Dept. 2019. 240(1) Liability Imposed. Repairing Store’s Broken Roll-Up Gate. Plaintiff struck when a “differential block and chain” as he & coworkers preparing a hoisting apparatus to remove & replace broken roll-up gate.  Activity of the removal of old roll-up gate & installation of  new roll-up gate is a repair within 240(1). Statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling but to hazards of defective parts of safety devices falling from elevated level to ground. Defendants liable whether coworker dropped the differential while preparing to use hoisting apparatus to remove old roll-up gate or the differential fell because it was inadequately secured. Barrios v. 19-19 24^th Ave. Co., LLC, 169 AD3d 747;

Refrigeration System

Second Dept. 2007. 240(1) Liability Imposed. Plaintiff, refrigeration technician, sent to refrigerated warehouse in response to emergency call as to refrigeration malfunction that took 29 hours to repair. Such work involved requiring, installing a “tattletale relay,” & replacing standard thermostat with digital electronic thermostat. Such activity constituted repair work. Juchniewicz v. Merex Food Corp., 46 AD3d 623;

Third Dept.

Repair Work. 240(1) Liability Imposed.

Plumbing Work

Third Dept. 2021. 240(1) Liability Imposed. Plaintiff responding to isolated & unexpected event, i.e., to address a low/no water pressure at a store caused by municipal water break. He fell off a ladder engaged in work. It was repair work. Eherts v. Shoprite Supermarkets, Inc., 199 AD3d 1270; 

Electrical Work

Third Dept. 2020. 240(1) Liability Imposed. Repairing Electrical Circuit. Plaintiff hired to troubleshoot & repair nonfunctioning overhead lighting system in the cold storage area of defendant’s shop. Cause of problem was not the light bulbs, light switch or the circuit breaker. Plaintiff fell from a ladder performing such work. Markou v. Sano-Rubin Construction Co., Inc., 182 AD3d 674 (2020); 

Door

Third Dept. 2021. Repair Work. 240(1) Imposed. Repairing a Door. As a door was so badly damaged by an accident earlier in the day that plaintiff and coworkers were unable to close it in the normal fashion & had to manipulate the door in an effort to close it & secure the building, it was an emergency repair, not maintenance. Russo v. Van Dale Props., LLC, 200 AD3d 1470;    

HVAC

Third Dept. 2009. Replacing Cracked Belts in HVAC System Constituted a “Repair.” 240(1) Liability Imposed. Replacing cracked belts to HVAC system. Defendants had not provided maintenance to HVAC system for over 3 years, leaving it nonfunctional & in serious state of disrepair. Plaintiff was troubleshooting & fixing problems he encountered with HVAC system. He was not merely replacing worn out parts.  Alexander v, Hart, 64 A.D.3d 940.

Fourth Dept. Repair Work. 240(1) Liability Imposed.

Replacing Rubber Flashing Around Plumbing Ventilation Pipes

Fourth Dept. 2024. Plaintiff & coworker on the roof of a concession stand at defendant’s commercial property replacing rubber flashing around plumbing ventilation pipes when plaintiff fell from the roof. Plaintiff not provided any safety devices. Distinguishing between routine maintenance & repairs depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work and whether the work involved the replacement of components damaged by normal wear & tear. Here, the rubber flashing was malfunctioning and inoperable prior to replacement & that the work being performed by plaintiff was necessary to restore the proper functioning of the roof. Verhoef v. Dean, 2024 NY Slip Op 06465;  

AT&T Tower

Fourth Dept. 2016. Investigating Malfunction at AT&T Tower. Plaintiff’s employer hired by AT&T to service its towers & plaintiff dispatched to a site to investigate & remedy an alarm indicating subject tower not functioning properly. Plaintiff climbed 180-foot tower as part of investigation to examine whether malfunction related to one of 6 mounted amplifiers (TMAs). To observe the TMA, plaintiff connected his shock absorbing lanyard to the tower. He then proceeded to a boom and used two slings or chokers to lower himself to the TMA, which was 4 feet below the boom. While engaged in such work, plaintiff grabbed the slings to pull himself upward. However, he slipped & both slings latched around his wrist caused a sudden jerk & pull movement, causing injury. Delineating between routine maintenance & repairs is frequently a close, fact driven issue & such distinction depends upon whether item being worked on was inoperable or malfunctioning prior to commencement of work & whether work involved replacement of components damaged by normal wear & tear. Here, plaintiff testified he & coworkers were dispatched to a tower only when in need of a repair. Cullen v. AT&T, Inc., 140 AD3d 1588;

Commercial Freezer

Fourth Dept. 2011. 240(1) Not Dismissed.  Working on Commercial Freezer. Plaintiff fell from ladder while working on commercial freezer at ski resort. Held that plaintiff engaged in repair work. Where a person is investigating a malfunction, efforts in furtherance of that investigation are protected activities under 240(1). Ozimek v. Holiday Val., Inc., 83 AD3d 1414;

Door

Fourth Dept. 2010. 240(1) Liability Imposed. Replacing Premature Deteriorated Parts. Plaintiff replacing bearing brackets on large garage door while working on scissor lift. While engaged in such work, garage door opened, struck the scissor lift, causing plaintiff to fall. Garage doors installed only weeks before & new bearing brackets were required as the previously installed bearing brackets wearing down prematurely. Such premature deterioration cannot be deemed normal wear and tear such that replacing the brackets would constitute routine maintenance. Dean v. City of Utica, 75 AD3d 1130; 

Fourth Dept. 2007. 240(1) Liability Imposed. Overhead Door. Work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented proper functioning of the overhead door of a storage building at defendant’s nursery complex, constituted the repair of a building rather than routine maintenance. And as such, was protected under 240(1). Brown v. Concord Nurseries, Inc., 37 AD3d 1076;

Lift Station

Fourth Dept. 2010. 240(1) Liability Imposed. Troubleshooting Uncommon Lift Station Malfunction. Distinguishing between routine maintenance & repairs depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work & whether the work involved the replacement of components damaged by normal wear & tear. While defendant contended injury-producing work was an inspection of a lift station, rather than a repair of that facility, it is not consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work.  Plaintiff injured while “troubleshooting” an uncommon lift station malfunction. Pieri v. B&B Welch Assoc., 74 AD3d 1727;

Canal Signal Lamp Fourth Dept. 2009. 240(1) Liability Imposed.Non-Functioning Canal Signal Lamp. Repair Work. Plaintiff fell from elevated platform while repairing non-functioning signal lamp at a lock on Erie Canal. To establish plaintiff was performing repair work within the ambit of 240(1), as opposed to routine maintenance, plaintiff must establish the building or structure being worked upon was inoperable or not functioning properly. Plaintiff established signal light not functioning because of a broken lens, & plaintiff engaged in repairing broken lens when accident occurred. Plaintiff established such lens not typically require replacement as result of normal wear & tear. Broken lens prevented proper functioning of signal light, which was required in order for the canal to be utilized by boats. As such, such work constituted a “repair” under 240(1), rather than routine maintenance. Buckman v. State of NY, 64 AD3d 1137;    

February 14. New York. Assignment of Indemnification Clause. Also, Contractual Indemnification Not Contingent Upon a Finding of Negligence But Upon Performance of The Work. GOL §5-322.1 Not Violated.

Fino v. Macy’s Retail Holdings, Inc., 2026 NY Slip Op 00732, decided Feb. 11 by Fourth Dept. Plaintiff’s decedent injured while exiting mis-leveled elevated located at premises leased by defendant Macy’s Retail Holdings. Such elevator exclusively serviced by Gallagher Elevator Company. Macys sought contractual indemnification from Gallagher. Gallagher asserted it had no right to indemnify Macys because Macys was not originally a party to the 1992 contract containing the operative defense & indemnification clause between Gallagher & Macys’ predecessor in interest.

However, Gallagher’s president testified without contradiction such contract was subsequently assigned to Macys & both parties thereafter operated pursuant to the terms of that contract.  

Appellate Court also rejected Gallagher’s contention its contractual obligation to Macys was based upon Gallagher being negligent. “The unambiguous intent of the indemnification clause was to provide a defense & indemnification for any and all claims, whether meritorious or not, arising out of the performance or non-performance of maintenance services.” As such, Gallagher’s indemnification obligation was not premised upon it being negligent.

No evidence Macys was negligent, which would have denied it indemnification from Gallagher. Although subject elevator was older & had not been upgraded, Gallagher’s president testified “it was common for older elevators to remain in operation because those installed in the old days were built much better than they are today.” Macys had exclusive contract with elevator company to inspect, maintain & repair the elevator & had neither actual nor constructive notice of defective condition. As no evidence Macys was negligent, General Obligation Law §5-322.1 prohibiting entity from being indemnified for its own negligence, not apply here.

Comment. Contracts are freely assignable absent a statutory or public policy prohibition.

Whether indemnity contract contains express prohibition as to assignability.

To be enforceable, assignment of indemnification clause must have occurred prior to the accident.

First Dept.

First Dept. 2014. Assignment of Indemnification Clause.  Subcontractor Sorbara obligated to indemnify as result of or connected with Sorbara’s work on subject construction project. Here, indemnification triggered by plaintiff’s claim that accident caused in part by uneven condition of concrete floor. As such, premises owner Gray-Line entitled to contractual indemnity from Sorbara. Gray-Line’s liability was purely vicarious because of court’s unchallenged dismissal of the Labor Law Section 200 & common law negligence claims.  Further, Thatch’s conveyance of premises to Gray-Line before the accident effectively assigned its indemnification rights to Gray-Line pursuant to assignment clause in subcontract between Thatch & Sorbara. Rainer v. Gray-Line Dev. Co., LLC, 117 AD3d 634;

Second Dept. Second Dept. 2013. Plaintiff installing rails & brackets in elevator shaft as part of renovation project at building owned by Patmos Fifth Real Estate. Plaintiff fell several stories as plank he was standing on collapsed. Plaintiff employed by Rotavele Elevator. Renovation started by building’s prior owner, Mazl Building & Mazl sold building to Patmos. There was no merit to Rotavele’s contention that Patmos was not entitled to seek contractual indemnification against it because of assignment of its indemnity contract with Mazl to Patmos was invalid. Contracts are freely assignable absent a contractual, statutory or public policy prohibition. Subject indemnity contract contained no express prohibition as to assignability. Rotavele failed to raise issue of fact indemnity contract was assignable. Samaroo v. Patmos Fifth Real Estate, Inc., 102 AD3d 944;