This week, the New York Court of Appeals will address a long-awaited question: whether General Obligations Law sec. 5-322.1 allows for partial indemnification provisions. In the Judlau v. Brooks Contracting, Inc., the Appellate Division, Second Department held that the statute does not contemplate partial indemnification provisions.
Judlau concerned an ironworker that Thunderbird Constructors, Inc. employed. The ironworker was injured while working on an overpass in Queens, New York. Thunderbird was the subcontractor for the project. The general contractor had installed a safety cable to mark the end of the partially-dismantled overpass to prevent falls. The injured worker grabbed the safety cable with his hand, but it gave way. The worker fell 25 feet to the parkway below. The worker sued the general contractor, and Supreme Court awarded him summary judgment on liability.
The general contractor commenced a third-party action against the subcontractor for contractual indemnification. Supreme Court dismissed the general contractor's indemnification claim against Thunderbird upon finding that the general contractor had been negligent and its negligence was "a substantial factor in causing the accident." It said, "[T]he court determines that the installation by [the general contractor] of a safety cable was done in an ineffective and unsafe manner because it broke. The degree of negligence the court is not determining, but [the general contractor] is negligent at least to some degree, 1 percent, 10 percent, 20 percent, and … is an active tort feasor, active negligence." The court declined to consider partial indemnification. The Second Department affirmed, ruling the general contractor's indemnification claim was properly dismissed because the general contractor itself was found to be negligent.
NYCL will keep you apprised of the decision, which will likely be handed down in October 2008.
New York Civil Law 