MUNOZ v. Sampogna Group Inc., Defendant–Appellant. (2024)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered November 3, 2022, which, to the extent appealed from, denied so much of defendant Sampogna Group Inc.’s (Sampogna) motion for summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it and dismissing all cross-claims as against it, and denied so much of the motion of third-party defendants RCI Plbg, Inc. and RCI Plumbing Corp. (RCI defendants) for summary judgment dismissing defendants/third party plaintiffs JDS Seagirt, LLC, JDS Development LLC and JDS Construction Group's (JDS defendants) third-party claims against them for contractual indemnification, unanimously affirmed, without costs.

While working as a plumbing mechanic at a home construction site in Far Rockaway, plaintiff stepped on unsecured metal Q-decking that had been placed over an open gap.  When the Q-decking gave way plaintiff fell six to ten feet to the ground below.  The property was owned and the construction overseen by the JDS defendants.  Sampogna was a concrete/masonry subcontractor on the project.  RCI entered into a plumbing contract with the JDS defendants, and then subcontracted the work to plaintiff's employer, nonparty Pro Star Heating & Plumbing.

Supreme Court correctly denied Sampogna's summary judgment motion on plaintiff's Labor Law § 200 and common-law negligence claims.  While it is unclear which entity placed the unsecured Q-decking, the record indicates Sampogna's concrete workers were the most recent trade working in the area in question, that Sampogna workers had a duty to employ fall protection methods in connection with their work, and that Sampogna utilized Q-decking in performing its concrete work.

Sampogna failed to demonstrate that it owed no duty to provide contractual indemnity to the JDS defendants.  Triable issues exist as to whether plaintiff's accident arose in whole or in part from Sampogna's work, from the negligence of the JDS defendants’ laborers and carpenters in the provision of fall protection, or from some other cause.  An owner and/or general contractor may seek contractual indemnification from a subcontractor although it may have been partly at fault for an accident as long as the indemnification provision at issue is prefaced by language specifying that the duty extends “to the fullest extent of the law,” as in this case, thereby precluding any potential violation of General Obligations Law § 5–322.1 (Brooks v. Judlau Contr., Inc., 11 N.Y.3d 204, 210, 869 N.Y.S.2d 366, 898 N.E.2d 549 [2008];  see also Port Parties, Ltd. v. Merchandise Mart Props., Inc., 102 A.D.3d 539, 540–541, 959 N.Y.S.2d 37 [1st Dept. 2013]).

Similar issues of fact defeat the RCI defendants’ motion for summary judgment dismissing the JDS defendants’ cross claim for contractual indemnification.  The RCI defendants concede that plaintiff was engaged in the plumbing work that is the subject of the RCI contract, thereby triggering the indemnity clause.  As stated above, there are triable issues of fact concerning whether any negligence of the JDS defendants was a proximate cause of plaintiff's injuries, and the RCI contract contains the language necessary to pass muster under General Obligations Law § 5–322.1.

We have considered the remaining arguments and find them unavailing.