Summary
holding scaffolding company liable to plaintiff under § 240 where the scaffolding company specifically "contracted to provide, erect and maintain the scaffolding and other equipment for the safety of those working on the job"
Summary of this case from Pollack v. Safeway Steel Products, Inc.Opinion
Argued September 2, 1987
Decided October 8, 1987
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Frank Vaccaro, J.
Donald F. Malone and William A. Prinsell for Atlantic Scaffold Ladder Company, Inc., appellant.
Roger P. McTiernan, Alan Russo and Carol Ann Weinman for Bowery Savings Bank, appellant. Ronald B. Feingold and Barry B. LePatner for Swanke Hayden Connell Architects, appellant.
Arthur N. Seiff, Michael J. Krakower and Daniel R. Goldman for plaintiffs-respondents.
Anthony J. McNulty for third-party defendant-respondent.
MEMORANDUM.
The order of the Appellate Division should be modified by granting Bowery Savings Bank and Swanke Hayden Connell Partners judgment over against Atlantic Scaffold Ladder Co. and Rambusch Decorating Co. on the basis of full contractual indemnity and, as so modified, affirmed.
The accident to plaintiff, a painter employed by Rambusch, occurred when he fell from scaffolding in the interior of the main headquarters of the Bowery Savings Bank which was undergoing a major renovation. The controversy at this stage is essentially among the contractors, an agent and the owner.
While we affirm the judgment based on a jury verdict, in favor of the injured plaintiff employee under Labor Law § 240 (1), we conclude that the contractual indemnity claims among the various defendants must be corrected.
In pertinent part, Labor Law § 240 (1) provides that all contractors, owners and their agents shall furnish and erect or cause to be furnished or erected on building construction, renovation, repair or demolition sites, scaffolding and other devices which will give proper protection to persons employed in such labor. The contracts, to which both Atlantic and Rambusch subscribed, contained an indemnity agreement requiring "[e]ach Contractor [to] indemnify the Bank and the Architects against claims arising from his work, to the fullest extent permitted by law". A separate contractual provision required each contractor to "indemnify and save harmless the Owner * * * and their respective employees and agents from and against all losses and all claims, demands, payments, suits, actions, recoveries, and judgments of every nature and description brought or recovered against them by reason of any omission or act of the contractor, his agents or employees, in the execution of the work or in the guarding of it."
The scaffolding contractor, Atlantic, contracted to provide, erect and maintain the scaffolding and other equipment for the safety of those working on the job. Consequently, there can be no question that Atlantic was properly found liable to plaintiff for his injuries (Labor Law § 240; Russin v Picciano Son, 54 N.Y.2d 311, 318; Haimes v New York Tel. Co., 46 N.Y.2d 132). There is also support in the record for the affirmed factual finding that Swanke, by virtue of its activity at the jobsite, was Bowery's agent within the meaning of Labor Law § 240 (1) and thus both were properly liable to plaintiff.
Swanke and Bowery are, however, entitled to full contractual indemnification from Atlantic and Rambusch who erroneously claim that Bowery and Swanke should be limited only to contribution because the indemnity clause does not contain express language referring to the negligence of the indemnitee. 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" (Margolin v New York Life Ins. Co., 32 N.Y.2d 149, 153; see also, Hogeland v Sibley, Lindsay Curr Co., 42 N.Y.2d 153, 159; Rodriguez v Baker, 91 A.D.2d 143, 146, affd for reasons stated below 61 N.Y.2d 804). Moreover, full contractual indemnification was not prohibited by the statute in effect at the time of this accident (see, General Obligations Law former § 5-322.1, as amended by L 1981, ch 964; Quevedo v City of New York, 56 N.Y.2d 150).
The remaining issues raised are either without merit or not preserved for review by this court.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order modified in accordance with the memorandum herein, with costs to Bowery Savings Bank and Swanke Hayden Connell and Partners against Atlantic Scaffold Ladder Company, Inc. and Rambusch Decorating Co. and, as so modified, affirmed, with costs to plaintiffs against Atlantic, Bowery and Swanke.