Buccini v. 1568 Broadway Associates

• Decision Date: 19 May 1998
• Citation: 673 N.Y.S.2d 398,250 A.D.2d 466
• Parties: , 1998 N.Y. Slip Op. 4790 Anthony BUCCINI, et al., Plaintiffs, v. 1568 BROADWAY ASSOCIATES, etc., et al., Defendants/Third-Party Plaintiffs-Appellants, v. MARINE CONTRACTORS, INC., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 398

673 N.Y.S.2d 398

250 A.D.2d 466, 1998 N.Y. Slip Op. 4790

Anthony BUCCINI, et al., Plaintiffs, v. 1568 BROADWAY ASSOCIATES, etc., et al., Defendants/Third-Party Plaintiffs-Appellants, v. MARINE CONTRACTORS, INC., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 19, 1998.

James K. O'Sullivan, for Defendants/Third-Party Plaintiffs-Appellants.

Corey A. Tavel, for Third-Party Defendant-Respondent.

Before ROSENBERGER, J.P., and NARDELLI, RUBIN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Carol Arber, J.), entered October 18, 1996, which, insofar as appealed from, denied the motion of defendants/third-party plaintiffs for summary judgment against third-party defendant for contractual and common law indemnification and breach of contract, unanimously reversed, on the law, without costs, the motion granted, and summary judgment awarded to defendants/third-party plaintiffs.

In this action, appellants seek indemnification from respondent contractor after being held liable under Labor Law § 240 for injuries sustained by the contractor's employee.

1568 Broadway, Inc. and Manhattan Suites Realty Corp. are the general partners of 1568 Broadway Associates ("Associates" or "owner"), a partnership that owns the property where the accident in question occurred. In 1988, Associates entered into a contract with HRH Construction Corp. ("HRH"), whereby HRH agreed to serve as construction manager for the hotel that Associates intended to build on its property. (These parties will be described collectively as "appellants".)

The duties of HRH under the contract consisted of business administration, management and coordination. The contract provided that for the most part, contractors hired by Associates would do the construction work themselves. HRH had an obligation to "review the safety programs of the contractors and make appropriate recommendations". However, this duty was limited as follows:

Construction Manager, however, shall not be required to make exhaustive or continuous inspections to check safety precautions or programs for the project. The performance of these services of Construction Manager shall not relieve the Contractors of their primary responsibility for safety of persons or property and for compliance with [various safety statutes].

Moreover, the sole beneficiaries of this contract would be Associates and HRH.

Associates hired Marine Contractors, Inc. ("Marine" or "respondent") to provide the superstructure concrete work for the hotel. Unlike the contract with HRH, the contract between Associates and Marine indicated that it was to have third-party beneficiaries, including HRH and Associates. By its terms, Marine was "solely responsible ... for the safe performance of the work hereunder". Marine agreed to "be responsible for initiating, maintaining and supervising safety precautions and programs in connection with the performance of its work hereunder." Marine was specifically required to provide protection for any floor openings while Marine was working on any deck.

The contract between Marine and Associates also included an indemnity clause in which Marine agreed, inter alia, to indemnify various parties including HRH, Associates and its partners for any injury to Marine's employees, except insofar as caused by the indemnitees' negligence. Finally, Marine was required to obtain liability insurance for injuries caused by its work and to list appellants as additional insureds under Marine's liability policy.

Plaintiff Anthony Buccini was employed by Marine as a mason foreman at the construction site. On July 29, 1989, he was pouring cement on an area that had been added to one of the floors of the building. He was standing on a portion of the floor that had been finished weeks earlier. As he was in the process of moving a device used to smooth out concrete, he suddenly fell through a 3' X 3' hole in the floor. It is customary for openings to be left in concrete floors when they are poured to accommodate later installation of pipes and wiring. However, for safety reasons, such holes are supposed to be covered with plywood secured by masonry nails, a precaution that apparently was not taken here. Buccini's deposition testimony established that Marine employees had made the hole, had covered such holes with plywood in the past, and had failed to do so with respect to this hole.

Buccini moved for summary judgment against appellants under Labor Law § 240. As there was no dispute as to how the accident occurred, and the facts established that Buccini was injured due to an elevation-related risk while he was engaged in construction of a building, appellants did not oppose this motion.

Appellants cross-moved for summary judgment against Marine on their claims for contractual and common-law indemnification and breach of the insurance procurement clause. Marine's insurance policy included several amendatory endorsements issued by the insurer, listing various other companies as additional insureds (presumably owners and contractors from other jobs on which Marine had worked). There was no such endorsement naming appellants as additional insureds. Appellants also claimed that Marine's insurer had not responded to their demands that it acknowledge their status as insureds.

In opposition, Marine presented a certificate of insurance that named appellants as additional insureds, but also stated that the certificate was for information purposes only and conferred no rights on the holder. Marine argued that this certificate satisfied its obligation to procure insurance. As for the indemnification issue, Marine claimed that HRH's alleged responsibility for worker safety created issues of fact as to HRH's negligence, which, if proven, would preclude indemnification under both the terms of the contract and Gen. Oblig. Law § 5-322.1.

Summary judgment was granted to Buccini on his claims against appellants. However, the motion court denied summary judgment to appellants on all of their third-party claims, finding that there were issues of fact as to how the accident occurred and the parties' responsibilities. This was error.

Where the liability of the owner or of the...