RAMOS v. FORD FOUNDATION (2025)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about October 2, 2024, which, to the extent appealed from as limited by the briefs, denied the motion of defendants The Ford Foundation and Henegan Construction Co., Inc. for summary judgment dismissing plaintiff's Labor Law §§ 200 and 240(1) and common-law negligence claims and on their contractual indemnification claim against second third-party defendant Harbour Mechanical Corporation, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, and, upon a search of the record, sua sponte dismissed Ford and Henegan's second third-party complaint against Harbour for contractual indemnification, unanimously modified, on the law, to vacate the dismissal of Ford and Henegan's second third-party complaint, grant Ford and Henegan's motion for summary judgment on their contractual indemnification claim to the extent of granting them conditional contractual indemnification from Harbour, and otherwise affirmed, without costs.

Plaintiff established his prima facie entitlement to summary judgment on his Labor Law § 240(1) claim.  Plaintiff's evidence showed that he was struck by a foot brace component to a scaffold that fell several stories from where a co-worker was dismantling the upper levels of the scaffold, and that the gravitational force generated by the falling object warranted the use of a safety device enumerated in Labor Law § 240(1), such as overhead protection, as per the unrebutted opinion of plaintiff's site safety expert (see Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 662–663, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014];  Fromel v. W2005/Hines W. Fifty–Third Realty, LLC, 232 A.D.3d 513, 514, 221 N.Y.S.3d 508 [1st Dept. 2024]).

Where, as here, plaintiff was properly granted summary judgment on his Labor Law § 240(1) claim, Ford and Henegan's arguments as to plaintiff's Labor Law § 200 and common-law negligence claims need not be reached (see Rincon v. New York City Hous. Auth., 202 A.D.3d 421, 422, 158 N.Y.S.3d 567 [1st Dept. 2022]).

Ford and Henegan's claim for contractual indemnification against Harbour should not have been dismissed.  Here, the injury was to an employee of Harbour's sub-subcontractor (see Brown v. Two Exch. Plaza Partners, 76 N.Y.2d 172, 178, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990];  see also Quiroz v. New York Presbyt./Columbia Univ. Med. Ctr., 202 A.D.3d 555, 556, 163 N.Y.S.3d 516 [1st Dept. 2022]), and the indemnification language in the subcontract broadly provided that, to the fullest extent of the law, Ford and Henegan (owner and general contractor, respectively) were to be indemnified as to “all claims, damages, losses and expenses ․ arising out of, in connection with or resulting from Subcontractor's Work, provided that such claim, damage, loss or expense is attributable to bodily injury ․ regardless of whether or not it is caused in part by a party indemnified hereunder.”  As there is some evidence in the record to suggest potential involvement of the general contractor in the directive to dismantle the scaffold, but no argument is made to indicate that either Ford or Henegan were the sole proximate cause of plaintiff's injury, Ford and Henegan should be granted conditional contractual indemnification against Harbour (see e.g. Devlin v. AECOM, 224 A.D.3d 437, 439, 203 N.Y.S.3d 312 [1st Dept. 2024]).