Section 241(6) was enacted also to protect workmen working on the ground level at construction sites. Section 241(6) provides that:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein . . .
Labor Law § 241(6) (McKinney 1986).
Here, Violette was not involved in any ultra-hazardous activity involving heights. He is not to be afforded the protection of § 240(1) of the Labor Law. Violette is adequately protected by §§ 200 and 241 of the Labor Laws.
The Liability Of The Owners Is Assumed By Elmar Under The Indemnity Agreement
Any liability which CMC and Carol may have results from the acts of others. Under the contract between CMC and Elmar, Elmar was to supervise and perform all the work at the project, to furnish all labor, materials and equipment for the completion of this project and to assume the entire responsibility and liability for all damages and injuries on this project. According to the contract, Elmar
assumes entire responsibility and liability for any and all damage or injury of any kind or nature whatever (including death resulting therefrom( to all persons, whether employees of Contractor or otherwise, and to all property, caused by, resulting from, arising out of, or occurring in connection with the execution of the Work and if any person shall make a claim for any damage or injury (including death resulting therefrom) as hereinabove described, whether such claim be based upon Owners passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of Owner, Contractor agrees to indemnify and save harmless Owner, its agents, servants, and employees from and against any and all loss, expense, damage, or injury that Owner may sustain as a result of any such claim. And Contractor agrees to assume, on behalf of Owner, the defense of any action at law or in equity, which may be brought against Owner upon such claim and to pay, on behalf of Owner upon its demand, the amount of any judgment that may be entered against Owner in any such action. Except that Contractors indemnity shall not pertain to any loss, expense, damage or injury caused by or resulting from the sole negligence of Owner, its agents or employees, unless said agreement is expressly permitted by applicable state law.
Contract between CMC and Elmar, Article 8 at p. 4, under the title "Insurance."
Where a contract exists between the parties with an indemnity agreement, the party seeking indemnity is entitled to summary judgment over the contractor, Schwalm v. County of Monroe, 158 A.D.2d 994, 550 N.Y.S.2d 970 (4th Dept. 1990). Also, in Heath v. Soloff Constr. Inc., 107 A.D.2d 507, 487 N.Y.S.2d 617 (4th Dept. 1985), the only liability asserted on the part of the Owner was based on the violation of the statute creating an absolute non-delegable duty and summary judgment on the indemnity was granted against the contractor.
In a recent decision regarding indemnity contracts, the Court of Appeals held that a contractor is entitled to indemnity under a written contract from the subcontractor employer even if the employer was not negligent in any way. O'Connor v. Serge Elevator Co., 58 N.Y.2d 655, 458 N.Y.S.2d 518, 444 N.E.2d 982 (1982).
Here Violette's injuries arose out of his work and Elmar must indemnify Armonk, CMC and Carol for all injuries sustained by plaintiff as a result of this accident.
On the facts and conclusions stated above, the Violettes' motion is denied, and the motion of Armonk, CMC and Carol for indemnity by Elmar is granted.
It is so ordered.
New York, N.Y.
December 10, 1992
ROBERT W. SWEET
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