Walsh v. Morse Diesel, Inc.

• Decision Date: 03 October 1988
• Citation: 533 N.Y.S.2d 80,143 A.D.2d 653
• Court: New York Supreme Court — Appellate Division
• Parties: Maurice WALSH, plaintiff, v. MORSE DIESEL, INC., Defendant third-party Plaintiff-Appellant; A & M Wallboard Corporation, third-party Defendant-Respondent.

Page 80

533 N.Y.S.2d 80

143 A.D.2d 653

Maurice WALSH, plaintiff, v. MORSE DIESEL, INC., Defendant third-party Plaintiff-Appellant A & M Wallboard Corporation, third-party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 3, 1988.

Semel, Boeckmann, Diamond, Schepp & Yuhas, New York City (Douglas A. Boeckmann and Michele Schuster, of counsel), for defendant third-party plaintiff-appellant.

Marshall & Bellard, Garden City (William T. Bellard, of counsel), for third-party defendant-respondent.

BRACKEN, J.P., and LAWRENCE, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant third-party plaintiff Morse Diesel, Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Queens County (Lonschein, J.), entered June 25, 1987, as dismissed the third-party complaint against the third-party defendant A & M Wallboard Corporation for failure to make out a prima facie case.

ORDERED that the judgment is reversed insofar as appealed from, on the law, the third-party complaint is reinstated, the third-party action is severed, and the third-party plaintiff is granted a new trial of the third-party complaint, with costs to abide the event.

The plaintiff Maurice Walsh brought this action to recover compensation for the personal injuries he suffered on December 17, 1981, while he was working at a construction site. The defendant Morse Diesel, Inc. (hereinafter Morse Diesel) subsequently commenced a third-party action against Mr. Walsh's employer, the third-party defendant A & M Wallboard Corporation (hereinafter A & M). The third-party complaint includes a cause of action based on allegations that A & M was contractually obligated to indemnify Morse Diesel against any liability resulting from the injuries suffered by Mr. Walsh.

Prior to trial, the parties stipulated that Mr. Walsh's damages should be assessed in the amount of $20,000. The subsequent testimony of Mr. Walsh--the only party who testified--established that on December 17, 1981, his foreman instructed him to obtain the use of a scaffold. After several minutes of use, the plywood support of the scaffold obtained by Mr. Walsh "just buckled" and "gave out", causing Mr. Walsh to fall. Based on these uncontested facts, the trial court granted judgment during trial in favor of the plaintiff and against Morse Diesel, pursuant to the provisions of Labor Law § 240(1) in the stipulated principal sum of $20,000.

Morse Diesel then attempted to prove its third-party claim based upon contractual indemnification by seeking to introduce into evidence a copy of the contract which it claims to have had with A & M. However, the trial court expressed its view that in the absence of any proof that A & M was to some extent negligent, Morse Diesel would be precluded from enforcing any indemnification agreement that it might be able to prove. The court found that Morse Diesel was unprepared to prove any negligence on the part of A & M, and therefore dismissed the third-party complaint.

On this appeal, the propriety of the money judgment in favor of the plaintiff and against Morse Diesel is beyond dispute. It is, in any event, clear that even in the absence of any proof of negligence on the part of Morse Diesel, liability was properly imposed upon it pursuant to Labor Law § 240(1) (see, Smith v. Hooker Chem. & Plastics Corp., 70 N.Y.2d 994, 526 N.Y.S.2d 424, 521 N.E.2d 431; Bland v. Manocherian, 66 N.Y.2d 452, 497 N.Y.S.2d 880, 488 N.E.2d 810; Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102, 482 N.E.2d 898). "Violation of this section imposed absolute liability on an owner or contractor regardless of the degree of its control over the work" ( DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 74, 459 N.Y.S.2d 503, citing Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601; Smith v. Hooker Chems & Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446; Rea v. Elia Bldg. Co., 79 A.D.2d 1102, 435 N.Y.S.2d 849). Thus, the sole question on appeal is whether the trial court properly precluded Morse Diesel from shifting this statutory liability to the third-party defendant.

The indemnification clause contained in the contract which Morse Diesel claims to have made with A & M is written in the broadest terms. It provides, inter alia, that "[t]o the extent permitted by law [A & M] shall save and hold [Morse Diesel] harmless from and against all liability which arise[s] out of or [is] connected with any accident which happens about the place where the work is being performed (1) while [A & M] is performing the work or (2) while any of [A & M's] personnel are in or about such place". In this case, then, the " 'intention to indemnify can be clearly implied from the language and purposes of the entire agreement' " (Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 774, 777, 521 N.Y.S.2d 216, 515 N.E.2d 902, quoting from Margolin v. New York Life Ins. Co., 32 N.Y.2d 149, 153, 344 N.Y.S.2d 336, 297 N.E.2d 80). There is no question...