107 A.D.2d 1029 | N.Y. App. Div. | 1985
— Order unanimously affirmed, with costs. Memorandum: Plaintiff, a laborer employed by third-party defendant George A. Nole & Son, Inc. (contractor), was injured when he fell from a scaffold while working at a building owned by defendant P & C Food Markets, Inc. (owner). Plaintiff commenced an action against the owner. In his complaint, plaintiff alleged that the owner (1) failed to provide a safety bar
The owner moved before Special Term for summary judgment on its second cause of action, seeking to have the contractor hold it harmless and indemnify it against any judgment and costs arising out of the primary actions. The contractor opposed the motion on the ground that the contract provision in issue is against public policy and violative of section 5-322.1 of the General Obligations Law and that there are other issues of fact which preclude summary judgment relief. In denying summary judgment, Special Term concluded that “[ijssues of both law and fact exist * * * [which] must be decided on the trial of the primary actions.” The court found that the record herein “is substantially in line with the facts and the law set forth in County of Onondaga v. Penetryn Systems, Inc., 84 AD2d 934”.
Summary judgment was properly denied; however, the indemnification clause in the contract between the parties hereto is not similar to that in the County of Onondaga case. The clause at issue here merely requires the contractor to indemnify the owner and to hold the owner “harmless from any claim arising out of the Contractor’s action in the execution of this Contract or failure to provide and maintain proper insurance protection required herein or to cause his Subcontractors, Suppliers, agent to comply with the provisions of this article.” Since the clause merely seeks to impose upon the contractor the duty to hold the owner harmless from any claim arising out of the contractor’s actions and not for any claims arising out of the sole negligence of the owner, the indemnification clause in this case does not violate section 5-322.1 of the General Obligations Law (see Knaak v Kravetz, 106 AD2d 876).
Generally a duty to provide a safe place to work is not breached when the injury arises out of a defect in the subcontractor’s own plant, tools and methods (Persichilli v Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145, mot for rearg den 16 NY2d 883; Tilkins v City of Niagara Falls, 52 AD2d 306, 308). Even if true that the contractor furnished the scaffolding on which plaintiff was working, the record reveals that the building owner employed a construction superintendent and therefore may have exercised some degree of supervisory control over the construction work and equipment. If the owner exercises