MARTINEZ v. Puca Construction Corp., Defendant–Appellant. (2026)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about February 24, 2025, which, to the extent appealed from, granted the motion of defendant 56th Realty LLC (Owner) for summary judgment on its cross-claim against defendant Puca Construction Corp. for contractual indemnification, unanimously reversed, on the law, without costs, and the motion denied.

Preliminarily, to the extent that Puca's argument that there is an issue of fact as to whether it is obligated to indemnify Owner depends on Glenwood Management and York Ave. Corp. being mere alter egos of Owner, we have already determined in a prior case that Glenwood was not an alter ego of Owner (see Kolenovic v. 56th Realty, LLC, 139 A.D.3d 588, 589, 32 N.Y.S.3d 137 [1st Dept. 2016] ).  This Court held that the fact that the two companies shared a principal and that Glenwood was Owner's managing agent did not make them alter egos (id. at 589, 32 N.Y.S.3d 137).  Puca has presented no evidence indicating that the relationship between those entities has changed significantly, if at all, or that York is Owner's alter ego.

Puca otherwise argues that General Obligations Law § 5–322.1(1) prevents summary judgment because there are issues of fact as to whether the negligence of Glenwood or York, as Owner's agents, contributed to plaintiff's accident (see Butler v. Marco Realty Assoc., L.P., 246 A.D.3d 610, 612, 253 N.Y.S.3d 44 [1st Dept. 2026] ).  In response, Owner contends that there is no support for any connection between it and Glenwood or York's work.  Owner further argues that Butler v. Marco Realty is distinguishable because there the indemnitee was the general contractor, not the property owner.

On this record, there is an issue of fact based on whether Glenwood and York were agents of Owner.  The indemnification agreement at issue requires Puca to indemnify Owner for personal injury claims “arising out of” the former's work.  Since the motion court previously determined that plaintiff is entitled to recover for his injuries pursuant to Labor Law § 240(1) arising out of work Puca performed, Puca would generally be required to indemnify Owner under the agreement.  However, General Obligations Law § 5–322.1(1) provides that an agreement relating to building work “purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons ․ contributed to, caused by or resulting from the negligence of the promisee, [its] agents or employees, or indemnitee ․ is void and unenforceable.”

There is testimony in the record indicating that Glenwood acted as a managing agent for Owner;  that York was an agent or subdivision of Glenwood;  and that Jesus Clemente, who supervised plaintiff and other workers and coordinated subcontractors, was employed by Glenwood.  Based on this testimony, there is an issue of fact as to whether Glenwood or York was negligent in causing plaintiff's injuries and thus whether partial or full contractual indemnification of Owner would be prohibited based on the negligence of its “agents” (General Obligations Law § 5–322.1[1];  see Butler, 246 A.D.3d at 612, 253 N.Y.S.3d 44).