State of New York
Supreme Court : County of Monroe

- against -

Index No. 2001/8414

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This is a case under Labor Law 240 (1), and the motion before the court is a simple one: whether common law indemnification is permissible between two defendants who are both vicariously liable. The court holds that it is.

In the present case defendants Massry, who own a large apartment complex, contracted with defendant Shaw to replace the roofs on some 85 units. The documents exchanged between the parties do not address indemnification. Shaw, in turn, subcontracted part of the work to plaintiff's employer, a firm called Roof Dogs. Plaintiff was injured when he fell from a roof on which he was working, and claims that he was not provided with a safety harness.

Plaintiff sued both Shaw, the general contractor, and the Massrys as owners. His injuries appear to fall well short of the "grave injury" standard now required for third-party actions under common law, and it is probably for this reason that neither defendant has sued Roof Dogs. What the court must decide, instead, is a motion between the two first-party defendants, neither of whom was immediately responsible for the plaintiff's fall.

The Massrys, who are the movants, argue that they had no responsibility for direction and control, and because this duty was delegated to Shaw they are entitled to be indemnified for any damages they may face. Shaw raises two objections. One is factual: he claims that a question of fact must be resolved concerning the Massrys' actual exercise of direction and control, because one of their employees regularly inspected the site and should have had notice of the conditions that led to the accident.

The other defense is legal in nature. Shaw claims that because both owner and general contractor are vicariously liable there can be no indemnification between them; their status vis-a-vis the plaintiff is identical, as both are simply answerable for the subcontractor's failure to provide a safe work place. In addition, he argues that the Labor Law's duty is non-delegable, and a grant of indemnification would in effect allow the Massrys to pass responsibility over to the contractor.

The court turns first to the factual question. It is true that the Massrys sent an inspector to the work site to make daily observations. It is clear from the EBTs, though, that these inspections were designed to ensure that the work was being done according to contract and schedule. His responsibilities were

to give Mr. Shaw the list of buildings that we wanted done for any given period of time. And to initial and okay his invoices that were turned in biweekly. And to visually drive by the building and make sure the new roofs were on before I would okay that the bill would be proce3ssed. Which was easy to tell, the original roofs were white, the new ones were brown, so if the roof was all brown it was done, pretty simple. (Robert, 103-104)

There is no evidence that the relationship between the Massrys and Shaw was any different from the conventional one between owner and contractor. Responsibility for the conduct of the work lay with the contractor, and the owner kept tabs on the project only to be satisfied that things were going according to schedule and that the contractor was not exaggerating the pace of the work.

Under these circumstances a conditional order of indemnification is indeed permissible. The court has relied on cases such as Mejia v African Methodist Episcopal Allen Church (271 AD2d 583), which held in similar circumstances that

The defendant African Methodist Episcopal Allen Church (hereinafter the church), the owner of the property, established that it was entitled to common-law indemnification from the general contractor, Arlen Contracting Corp. Arlen and the plaintiff's employer, Caruso Masonry Corporation, a subcontractor, had complete control over the plaintiff's work and the erection of scaffolding. (271 AD2d, 584, citations omitted)

The grant of such indemnification does not lessen the non delegable nature of liability under the Labor Law, any more than would the existence of a third-party action. The Massrys remain potentially liable to plaintiff; it is only with respect to Shaw that the indemnification judgment runs, and should Shaw for any reason be unable to satisfy a judgment after trial the plaintiff would be able to recover from the Massrys. It is for this reason, surely, that the plaintiff takes no position with respect to the motion at hand.

That motion is granted, without costs or disbursements. Counsel for the Massrys may prepare the order.

DATED: Rochester, New York

April 11, 2003

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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