CALLAN v. RCB3 NOMINEE LLC (2026)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about August 23, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim, denied so much of defendants’ motion for summary judgment dismissing that claim, denied defendants/third-party-plaintiffs’ motion for summary judgment on their third-party contractual indemnification claim, and granted third-party defendant's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim (see Begnoja v. Hudson Riv. Park Trust, 238 A.D.3d 481, 481, 234 N.Y.S.3d 462 [1st Dept. 2025]).  Plaintiff testified that the ladder he was working on shifted and caused him to fall.  This testimony does not contradict the accident report containing plaintiff's statement that he missed a step on the ladder (cf.  Guerrero v. 115 Cent. Park W. Corp., 168 A.D.3d 408, 408, 88 N.Y.S.3d 880 [1st Dept. 2019]), and there is no testimony that refutes plaintiff's description of the accident.  Defendants’ argument that plaintiff was the sole proximate cause of his accident is unavailing (see Garcia v. Church of St. Joseph of the Holy Family of City of N.Y., 146 A.D.3d 524, 526, 45 N.Y.S.3d 66 [1st Dept. 2017]).

Supreme Court correctly found that third-party defendant J & L Electrical & Communication Group, Inc.’s contract with nonparty Automated Logic Contracting Services, Inc. did not contemplate indemnity for defendants. The Automated/J&L contract identified the owner as “GID Development, Inc.” and not as either of the defendants, Therefore, defendants are not entitled to contractual indemnification from J & L. “If the parties intended to cover [defendants] as ․ potential indemnitee[s], they had only to say so unambiguously” (Nicholson v. Sabey Data Ctr. Props., LLC, 160 A.D.3d 587, 587, 72 N.Y.S.3d 445 [1st Dept. 2018]).  Nor does the incorporation clause in the Automated/J&L contract bind J&L to the indemnification clauses contained in other contracts executed by the construction manager, defendant Tishman Construction Corporation, and other nonparty subcontractors retained by Tishman (see Naupari v. Murray, 163 A.D.3d 401, 402, 81 N.Y.S.3d 24 [1st Dept. 2018]).