ADAGIO v. [And A Third–Party Action] (2019)

Plaintiff, an employee of nonparty Tishman Construction Corporation of New York, was injured in a slip and fall while carrying a ladder back to its storage location in a yard at the Jacob Javits Center, which was undergoing renovation and the construction of a new building.  He had brought the ladder to a particular section of a wall of the new building for use by Tishman's project architect in inspecting fire stop construction work purportedly done by defendant Racanelli.  Racanelli was present at the site for 30 minutes during the inspection and later performed two days of remedial work necessitated by the findings of the inspection.

An issue of fact exists whether plaintiff's accident arose out of or resulted from the performance of Racanelli's work so as to trigger the broad indemnification provision in Racanelli's contract with Tishman.  The provision, which expressly states that it is to be broadly interpreted in favor of the indemnitees, including the Javits Defendants, requires indemnification by Racanelli for all claims “arising out of or resulting from [inter alia] the performance of [its] Work.” Contrary to Racanelli's contention, the finding that it was not liable for plaintiff's injuries does not render it free from liability for indemnification under this provision, which does not require that the damage or loss underlying a claim be attributable to negligence on Racanelli's part (see Wilk v. Columbia Univ., 150 A.D.3d 502, 57 N.Y.S.3d 5 [1st Dept. 2017] ).