Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 13, 2012
Mazzarelli, J.P., Catterson, Moskowitz, Manzanet-Daniels, Roman, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 23, 2011, which, to the extent appealed from as limited by the briefs, denied the motion of defendant Plaza Construction Corporation (Plaza) for conditional summary judgment on its cross claim seeking contractual indemnification from defendant Five Star Electrical Corp. (Five Star), affirmed, without costs.
Defendant 46 Street Development LLC (owner) hired Plaza to manage the construction of a 42-story residential building owned by the former. Plaza hired Five Star as the electrical subcontractor. Pursuant to the contract between Plaza and the owner, Plaza was solely responsible for "coordinating the construction of all portions of the work," and had broad and specific responsibilities relating to site safety. Indeed, Plaza hired an outside safety coordinator, Total Safety Consulting, to ensure that all proper safety precautions were taken on the site. The contract between Plaza and Five Star contained an indemnification and hold harmless clause, which provided that Five Star would indemnify and hold Plaza harmless for damages which "ar[i]se out of or are connected with or ... claimed to arise out of or be connected with ... performance of [w]ork by [Five Star]."
Plaintiff Enrique Sosa was an employee of non party Port Morris Tile Corporation, the tile contractor. He alleges that at about 7:15 a.m. on December 13, 2007, while engaged in tiling work in a bathroom in an apartment on the 10th floor, he sustained injuries from an electric shock after coming into contact with an exposed, hanging electric wire. When the accident occurred, Con Edison was already in the process of transforming the power supply in the building from "temporary" to "permanent." The temporary supply was made available to contractors while the superstructure of the building was being erected. Robert Marrone, who was Plaza's superintendent at the project in the year leading up to the accident, testified that power was gradually switched to permanent as the building rose and individual apartments became ready to be finished. However, even after sections of the building went to permanent power supply, that power would remain off unless a contractor specifically requested that power be supplied to the apartments. To connect the power in those apartments, Five Star was required to activate breakers at central panels which controlled power to three floors. It also had to activate breakers in the individual apartments where the requesting contractor desired to work. Plaza generally coordinated with Five Star when individual contractors needed power in an apartment.
A few days before the accident in question, Port Morris requested that the permanent power supply in the apartments be activated in two specific areas, including at the outlets providing electricity for washing machines. Port Morris planned to plug tile-cutting saws into those outlets. Five Star accommodated the request by activating breakers at the central panels and at the necessary areas in the apartments. It also went to each individual apartment to "safe off" the relevant outlets, which involved insulating the wires at those outlets to prevent the workers from sustaining electrical shocks. Chris Cote, Five Star's foreman, testified at his deposition that on the night before the accident he saw workers from contractors other than Port Morris working in apartments and using permanent electricity. The only way these workers could have accessed the electricity was to activate breakers in those apartments. However, these workers were not permitted to do so without direct authorization from Five Star. Cote reported what he saw to Plaza. This was not the first time that Cote noticed other contractors circumventing Five Star to draw more power for their work. In fact, he testified, it happened more frequently in the beginning stages of the project. The subject incident occurred toward the end of the project.
Two of Five Star's workers gave testimony that was consistent with Cote's to the extent they stated that it was not unheard of for other contractors, after the permanent power supply had been activated, to energize electric power in individual apartments without Five Star's knowledge or permission. One of the workers, Ralph Lopez, testified that from the time the permanent power supply was activated at the site, he was aware of incidents where other trades would activate breakers inside apartments without Five Star's knowledge. Bridgette Kennedy, who had been working at the job for a few weeks before the accident, testified that the problem occurred on a daily basis. She further averred that the problem was not uncommon in the industry. Finally, Kennedy testified that the issue was discussed at safety meetings run by Plaza through its contractor, Total Safety Consulting.
Plaza's superintendent on the project, William Rogers, testified that it was "possible" that there was a problem during the construction of the building with contractors activating electricity in apartments without proper authorization. He further testified that it was "possible" that the issue came up during safety meetings.
Plaza cross-claimed against Five Star for, inter alia, contractual indemnification. It then moved for conditional summary judgment on that claim. Conceding that any evidence of active negligence on its part would render the indemnification clause unenforceable, Plaza argued that "[t]he fact that a construction manager runs safety meetings, inspects the site, supervises and coordinates the work of the trades etc. is not the basis for a claim of active negligence."
In opposition, Five Star did not contest that the indemnification provision covered the subject accident. However, relying on testimony from Five Star's witnesses that there was a problem at the construction site with unauthorized activation of permanent power, it asserted that, pursuant to General Obligations Law § 5-322.1, an issue of fact existed regarding enforceability of the indemnification provision.
In a ruling from the bench, the court denied the motion. It stated that "to the extent that Plaza was coordinating the different trades within the unit, whether or not there was knowledge of them turning the circuit breakers on is a question of fact. One of [Five] Star's workers says they kept finding the circuit breakers switched on when they should have been switched off, and this is a question for the jury."
As trite as such recitations have become, this is a case that deserves a brief reiteration of the by now well-settled constraints imposed on any court considering a summary judgment motion. "On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tendered sufficient evidence to demonstrate the absence of any material issues of fact and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action" (Vega v Restani Constr. Corp., 18 NY3d 499, 503  [internal quotation marks omitted]). Courts may not ...