of the General Obligations Law's prohibition against indennifying a contractor for its own negligence was inapplicable. The court noted, however, that a showing of negligence by the general contractor would have rendered the clause unenforceable against the subcontractors to the extent of the general contractor's negligence. In this case, Fiske II asserts that there is a material issue of fact as to whether negligence in whole or in part by Whitford resulted in the accident suffered by Plaintiff.
In arguing that no material fact issue exists as to the question of Whitford's negligence, Whitford supplied evidence to show that, while Whitford provided pipe scaffolding up to a certain height around the exterior wall of the steeple where Plaintiff's accident occurred, Fiske II had the responsibility to provide the necessary scaffolding and equipment for work above and about the scaffolding provided by Whitford. See, Exhibit D, Whitford's Motion for Summary Judgment against Fiske II, dated December 11, 1991, Affidavit of Douglas Cornell, Whitford Project Superintendent for the St. Mary's Project. Cornell also stated in his affidavit that, at the time of the accident, Whitford did not direct, instruct, or control any of the means or methods by which Fiske II performed its work in the area of the accident. See, Exhibit D, Whitford's Motion for Summary Judgment against Fiske II, dated December 11, 1991. Whitford also provided deposition testimony from various Fiske II principals and Plaintiff which stated that Whitford complied with all requests for safety equipment and scaffolding by Fiske II. see, Exhibit E, Whitford's Motion for Summary Judgment against Fiske II, dated December 11, 1991.
Fiske II, in arguing against summary judgment, supplied deposition testimony, in an attempt to establish that whitford had ultimate responsibility for safety at the work site at St. Mary's. Testimony given by L.C. Whitford, the President of Whitford, established that one person at the construction site, an employee of Whitford, was responsible for overseeing safety measures. See, Exhibit B, Affidavit of Thomas W. Bender, dated January 17, 1992, L.C. Whitford Deposition at p. 34-35, 56-57. Mr. Whitford also acknowledged that the change in contract plans by St. Mary's resulted in the use of less scaffolding than originally envisioned, and he further noted that he was aware that his employee, Doug Cornell, the Superintendent on the job, at times directed Fiske II employees to wear safety belts. L.C. Whitford Deposition at p. 38, 48, 75. There is also evidence that there were instances where Cornell would have safety meetings with the workers from Fiske II and discuss safety aspects of their jobs, including giving recommendations on such safety issues. See, Exhibit C, Affidavit of Thomas W. Bender, dated January 17, 1992, Deposition of Douglas Cornell at p. 133. Cornell also testified that he inspected the work site daily, going up to the roof area three or more times a week, and would discuss with members of the Fiske II work crew problems that he saw with either the quality of work being done or with safety. Cornell Deposition at p. 136-137. Cornell specifically stated that he had the authority to tell the Fiske II employees to wear safety belts, and in fact, on a few occasions gave such a direction. Cornell Deposition at p. 138-139. Following the accident, Cornell told both the Fiske II and Whitford workers to remedy any possible safety hazards at the job site. Cornell Deposition at p. 164.
After reviewing the evidence presented in the record, including affidavits and deposition testimony, the court concludes that material issues of fact remain as to whether the accident resulted from any negligence on the part of Whitford. If negligence on the part of Whitford can be established, Whitford will at least be partially responsible for any damages awarded to Plaintiff as the contractual indemnification clause specifically states that indemnification will only be given to Whitford for damages resulting from the negligence of Fiske II or its subcontractors. In addition, New York General Obligations Law § 5-322.1 would render the indemnification clause unenforceable if it required any payment to Whitford by Fiske II for damages attributable to Whitford's negligence. For Fiske II to be required to fully indemnify Whitford for any damages which may be awarded to Plaintiff, Whitford must establish that it did not supervise, direct, or control the construction work performed by Fiske II. See, Smith v. Cassadaga Valley School District, 178 A.D.2d 955, 578 N.Y.S.2d 747 (App Div. 4th Dep't. 1991) (summary judgment for general contractor on the issue of an indemnification clause contained in a contract with a subcontractor denied as general contractor retained control and sole responsibility for every aspect of the construction project; cross-motion for summary judgment by owner against general contractor on the issue of indemnification granted as there was no evidence of negligence on part of owner as owner's inspector did not supervise or direct the construction work and did not control the use of safety equipment); Arbusto v. Fordham University, 160 A.D.2d 194, 554 N.Y.S.2d 3 (App. Div. 1st Dep't. 1990) (summary judgment based on contractual indemnification clause properly denied where there was a genuine issue of material fact as to whether defendant exercised control at the construction site); Schwalm v. County of Monroe, 550 N.Y.S. 970 (App. Div. 4th Dep't. 1990) (granting of summary judgment based on contractual indemnification clause upheld as defendant owner had no control and did not supervise the work site). As the facts are disputed as to the degree of control and supervision Whitford had over the workplace, especially as to the Fiske II workers, summary judgment on this issue is DENIED.
Based on the foregoing analysis, Whitford and Fiske II's motions to amend their answers are DENIED, Whitford's motion for summary judgment dismissing it from the case is DENIED, and Whitford's motion for summary judgment for indemnification against Fiske II is DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: April 23, 1992
Buffalo, New York