The opinion of the court was delivered by: Robert F. Ward, United States District Judge
On September 24, 2102, third-party defendant Schwob & Sage Building Corporation "Schwob") moved pursuant to Fed.R.Civ.P. 56 for summary judgment against defendants/third-party plaintiffs Ace Hardware Corporation "Ace") and Butler Construction Company ("Butler"), seeking a dismissal of the third—party complaint. Three days later, or September 27, 2002, Ace and Butler moved for summary judgement against Schwob. For the reasons hereinafter stated, both defendants/third-party plaintiffs' and third—party defendant's motions are denied.
On January 6, 1997, plaintiff Agricultural Insurance Company Inc.'s assignor, Robert T. Treadway, Jr. ("Treadway"), was injured during his employment when he fell from an elevated height at a construction site during the building of a Retail Support Center in Wilton, New York. The injury to Treadway occurred when the steel beam on which he was standing and working collapsed.
The premises were owned by Ace. Ace hired Butler as its general contractor pursuant to a contract executed on October 28, 1996 (hereinafter "prime contract"). Butler in turn hired Treadway's employer, Schwob, to perform steel erection work related to the construction of the building, pursuant to a subcontract executed on November 21, 1996 (hereinafter "subcontract").
In December of 1998, Treadway commenced an action against defendants/third-party plaintiffs Ace and Butler in the Supreme Court of the State of New York. Approximately one month later, plaintiff Agricultural Insurance Company, Inc., as Assignee of Treadway ("Agricultural"), filed an Amended Complaint against Ace and Butler in the Southern District of New York. The Amended Complaint alleges, inter alia, negligence and violations of N.Y. Labor Labor Law §§ 200, 240(1), and 240(6). Ace and Butler commenced a third-party action on August 28, 2001, by filing a third—party action against Schwob, seeking, inter alia, contractual indemnification pursuant to the subcontract between Butler and Schwob. On August 12, 2002, this Court granted plaintiff Agricultural's motion for partial summary judgment on the issue of liability against defendants/third—party plaintiffs for violations of N.Y. Labor Law § 240(1).
In the instant action, defendants/third-party plaintiffs (hereinafter "third-party plaintiffs") seek summary judgment against third-party defendant Schwob and allege the following: (1) Ace and Butler did not direct or control the work Treadway was performing at the time of the accident; (2) Schwob's contractual responsibility renders Schwob solely responsible for Treadway's safety; and (3) Schwob's failure to provide temporary bracing is the sole proximate cause of the accident.
Third-party defendant Schwob, on the other hand, moves for summary judgment against Ace and Butler and argues the following: (1) the indemnification provision in the subcontract is void and unenforceable under N.Y. General Obligations Law § 5-322.1; and (2) because there is no valid indemnification provision in effect between Butler and Schwob, a contractual indemnification claim against Schwob is precluded by the exclusivity provision of the New York Workers' Compensation Law.
I. Summary Judgment Standard
The summary judgment standard is well-known. Summary judgment is proper when it is clear from the pleadings, depositions, answers to interrogatories, admissions, and affidavits "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must determine "whether the evidence presents a sufficient disagreement to require submission to [the factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making this determination, the Court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor" Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993).
Initially, the moving party must show that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 1986. Once the moving party has carried its burden under Rule 56, the nonmoving moving party must set forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving moving party is required on introduce evidence beyond the mere pleadings to show that there is an issue of material fact concerning "an element essential to that party's case, and on which that party will bear one burden of proof at trial." Celotex, 477 U.S. at 322.
II. Third-Party Plaintiffs Ace and Butler's Motion for Summary Judgment
Against Third-Party Defendant Schwob
A. Direction and Control of Treadway's Work
Third—party plaintiffs Ace and Butler agrue that they are entitled to summary judgement because they did not supervise or control Treadway's work at the time of the accident and there is no evidence that then were negligent. They claim that Schwob alone directed and controlled Treadway's work and Schwob's contractual obligations render Schwob solely responsible for Treadway's safety. In response, Schwob asserts that third-party plaintiffs supervised and controlled Treadway's work, but ...