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Labor Law § 240 (1)…cont

To establish liability under a theory of common-law negligence and for a violation of Labor Law § 200, an injured worker must establish that the party charged with the duty to maintain a reasonably safe construction site had the authority to control the activity bringing about the injury, to enable it to avoid or correct an unsafe condition. The defendant Holt established its prima facie entitlement to judgment as a matter of law by producing evidence that it did not have supervisory control over the activity that brought about the plaintiff’s personal injury.

Furthermore, when the claim arises out of alleged defects or dangers arising from the subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it can be shown that the party charged exercised some supervisory control over the operation or had actual or constructive notice of the unsafe condition. An owner or contractor’s mere retention of contractual inspection privileges or a general right to supervise does not amount to control sufficient to impose liability. General supervisory authority at the work site, for purposes of overseeing the progress of the work and inspecting the work product, has be found to be insufficient to establish a cause of action under either Labor Law § 200 or the common law.

Further, the mere retention of inspection privileges and the fact that a defendant inspects the work site and was authorized to stop the work in the event that it observed any unsafe condition is insufficient to establish liability.

In the instant case, the employer did not exercise control or supervision over the work nor did it have the authority to control the activity which brought about plaintiff’s injury.

The branch of the cross motion which seeks to dismiss plaintiff’s claims pursuant to Labor Law § 240 (1), is denied, for reasons noted above.

Labor Law § 241 (6) imposes a “nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” To recover on a cause of action alleging a violation Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards.

Pursuant to the contract between Holt and JOFW, there is an indemnification clause which reads as follows: 12.1 Subcontractor’s Performance: To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Architect and General Contractor… from and against all claims, damages, losses and expenses including but not limited to attorney’s fees, arising out of or resulting from the performance of the Subcontractor’s work provided that: (a) any such claim, damage, loss or expense is attributable to bodily personal injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Subcontractor’s work itself) including the loss of use resulting therefrom, to the extent caused or alleged to be caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by the Subcontractor or anyone for whose acts the Subcontractor may be liable…

A party is entitled to full contractual indemnification provided that the “intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances”. The facts surrounding plaintiff’s accident coupled with the language of the indemnification clause in the contract between the parties indicate that Holt is entitled to conditional contractual indemnification.

The motion by plaintiffs for summary judgment in their favor on their claims pursuant to Labor Law § 240 (1), is granted.

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