Second Department Affirms Finding of Question of Fact in Labor Law Action as to Whether Plaintiff Was Permitted to Work on Roof At the Time of His Accident and Awards Conditional Contractual Indemnification to Owner

In Jardin v. A Very Special Place, Inc., the plaintiff was employed by a sub-subcontractor when he fell from an unsecured ladder while attempting to reach the roof of a building undergoing renovation. The trial court denied plaintiff's motion for partial summary judgment on liability pursuant to labor Law § 240(1), finding questions of fact as to whether plaintiff was permitted to be on site at the time of the accident and whether anyone had instructed plaintiff to access the roof of the building. On appeal, the Second Department affirmed.

The Second Department also modified the order appealed to award the owner conditional summary judgment on its claim against the general contractor. The relevant indemnity provision indicated that the owner could be indemnified for the negligent acts of its general contractor, a subcontractor or anyone directly or indirectly employed by them. Since the owner demonstrated that it was free from fault with respect to the happening of the plaintiff's accident, it was entitled to summary judgment conditioned to the extent that the owner is ultimately held vicariously liable to the plaintiff, and limited to the extent that incident arose out of the negligence of either the general contractor, the subcontractor or the sub-subcontractor.