McCarthy v. Turner Construction, Inc.
17 N.Y.3d 369
NY2011Background
- Plaintiffs/injured electrician employed by Samuels Datacom, LLC, injured March 2, 2005 on a Times Square project managed by Gallin under Ann Taylor, Inc. contract.
- Property owners Boston Properties, Inc. and Times Square Tower Associates, LLC leased premises to Ann Taylor, who contracted Gallin as construction manager.
- Gallin contracted Linear Technologies, Inc., which hired Samuels; plaintiff worked for Samuels on site.
- Plaintiff and spouse sued Turner, Gallin, and property owners for Labor Law §§ 200, 240(1), 241(6) and common-law negligence; owners cross-claimed for contribution and common-law indemnification.
- Supreme Court granted plaintiff summary judgment on Labor Law § 240(1); denied property owners’ contractual indemnification against Gallin; Appellate Division affirmed denial of indemnification claim; this Court granted leave to appeal and now affirms.
- The issue is whether property owners are entitled to common-law indemnification from Gallin, given Gallin’s contractual authority but limited actual supervision over plaintiff’s work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether common-law indemnification can lie where indemnitor had contractual authority but did not actually supervise the work. | Mas/fairness support indemnity because of contractual control. | Indemnity requires actual supervision or fault by indemnitor. | No; authority alone is insufficient; actual supervision or fault required. |
| Whether Gallin’s contractual control over the project warrants indemnity despite not supervising plaintiff’s work. | Gallin’s contract to supervise/control the project supports indemnity. | Absent actual supervision, no indemnity obligation. | Indemnity not imposed where Gallin did not supervise the injured worker. |
| Whether Labor Law § 240(1) liability can be passed through to Gallin to require indemnity. | Owners’ vicarious liability could flow to Gallin via indemnity. | MV §240(1) does not alter common-law indemnity rights. | Labor Law liability does not mandate indemnification by Gallin where Gallin did not actively supervise. |
Key Cases Cited
- Rocovich v. Consolidated Edison Co. of New York, Inc., 78 N.Y.2d 509 (N.Y. 1991) (nondelegable safety duty; indemnity interplay with statutory liability)
- Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494 (N.Y. 1993) (nondelegable duty context; safety obligations and indemnity)
- Felker v. Corning Inc., 90 N.Y.2d 219 (N.Y. 1997) (subcontractor supervision can trigger indemnity even absent negligence)
- Mas v. Two Bridges Assoc., 75 N.Y.2d 680 (N.Y. 1990) (implied indemnity to prevent unjust enrichment)
- Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N.Y.2d 1 (N.Y. 1974) (general contractor indemnity from subcontractor when subcontractor negligent or safety authority)
- Rogers v. Dorchester Assoc., 32 N.Y.2d 553 (N.Y. 1973) (indemnity allowed against a party with active fault or supervisory role)
- Ortega v. Catamount Constr. Corp., 264 A.D.2d 323 (1st Dept 1999) (contractual authority to supervise can support indemnity)
- Keck v. Bd. of Trustees of Corning Community Coll., 229 A.D.2d 1016 (4th Dep’t 1996) (supervision standard for indemnity)