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Manhattan and Bronx Surface Transit Authority (MABSTOA)….cont

The court rejects the MTA defendants’ and JCI’s contention that there is an issue of fact as to whether the rope provided adequate protection in light of the elevation-related risks presented by JF’s work. Contrary to the MTA defendants’ and JCI’s position, JF is not required to prove that the hoist was defective. The cases relied upon by the MTA defendants and JCI are inapposite.

Although the MTA defendants and JCI contend that JF failed to tie the rope correctly to the pipe, his own negligence, if any, is of no consequence.

Therefore, JF is entitled to partial summary judgment under Labor Law § 240 (1) against the City of New York, the fee owner of the fan plant.

JF moves for partial summary judgment under Labor Law § 241 (6) based on violations of 12 NYCRR 23-1.2 and 23-1.5. Although JF submits an affidavit from an expert indicating that the MTA defendants violated sections 23-1.2 and 23-1.5, the interpretation of an Industrial Code regulation and determination as to whether a particular condition is within the scope of the regulation present questions of law for the court.

Here, section 23-1.2, entitled “Finding of fact,” does not constitute a specific standard of conduct. Therefore, JF’s motion for partial summary judgment under Labor Law § 241 (6) is denied.

FS’s Cross Motion for Conditional Contractual Indemnification Against EEI FS moves for conditional contractual indemnification against EEI, based upon the indemnification provision in FS’s subcontract with EEI. FS’s cross motion is denied. It has yet to be determined whether the personal injury arose out of, or resulted from the performance of EEI’s contract or occurred in connection therewith.

The MTA Defendants’ Motion for Summary Judgment.

In moving for contractual indemnification from JCI, the MTA defendants contend that they had no involvement in the work that led to JF’s accident. Thus, according to the MTA defendants, their liability is solely statutory and passive.

JCI argues that there are issues of fact as to whether the MTA defendants were at least partially negligent in causing JF’s accident.

A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances. In contractual indemnification, the one seeking indemnity need only establish that it was free from any negligence and was held liable solely by virtue of the statutory liability. Whether or not the proposed indemnitor was negligent is a non-issue and irrelevant.

Pursuant to General Obligations Law § 5-322.1, a clause in a construction contract which purports to indemnify a party for its own negligence is against public policy and is void and unenforceable. Furthermore, even if the clause does not contain this limiting language, it may nevertheless be enforced where the party to be indemnified is found to be free of any negligence.

Here, JCI does not dispute that it expressly agreed to indemnify the MTA defendants for the type of loss suffered by JF. The indemnification provision states that JCI shall be solely responsible for (1) all injuries (including death) to persons, including but not limited to employees of the Contractor JCI,on account of, or in connection with, the performance of the Work, and that JCI shall indemnify and hold harmless the Indemnified Parties, to the fullest extent permitted by law, from loss and liability upon any and all claims and expenses, including but not limited to attorneys’ fees, on account of such injuries to persons or such damage to property. Since the indemnification provision provides for indemnification to the fullest extent permitted by law, it does not run afoul of General Obligations Law § 5-322.1. As noted above, the City has been found vicariously liable as fee owner of the fan plant under Labor Law § 240 (1). The MTA defendants have shown that they were not negligent. JF testified that he did not speak to anyone from the City regarding his job and tasks. In addition, the provision is triggered because JF was an employee of JCI, and his injury were on account of or, in connection with, the performance of JCI’s Work.

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