Williamsonv.Borg Florman Development Corp.

Appellate Division of the Supreme Court of New York, First DepartmentMar 18, 1993
191 A.D.2d 335 (N.Y. App. Div. 1993)
191 A.D.2d 335594 N.Y.S.2d 778

March 18, 1993

Appeal from the Supreme Court, Bronx County (Barry Salman, J.).

Plaintiff, a 62-year-old dietary aide employed by third-party defendant Beth Abraham, was injured when she stepped onto a sheetrock panel covering a trench in the floor in the kitchen area where she was required to work. There was evidence from which the jury could conclude that a trench had been dug in the cafeteria floor to permit the installation of pipes during the course of extensive renovation, and that the trench had been improperly covered with a piece of sheetrock.

Because the jury found that both defendant Borg, the general contractor, and third-party defendant Beth Abraham, were negligent, the IAS Court denied Beth Abraham's motion for judgment over against Borg. While it is true that General Obligations Law § 5-322.1 renders void agreements to indemnify negligent parties against their own negligence, an agreement to provide insurance, such as was agreed to by Borg here, does not offend the statute. Accordingly under the facts herein presented, Borg is liable for plaintiff's resulting damages, including the portion thereof attributable to Beth Abraham's negligence (Kinney v. Lisk Co., 76 N.Y.2d 215).

Borg also argues that Labor Law § 241 (6) should not have been charged to the jury since by its terms, the protection of that statute extends only to the "persons employed therein or lawfully frequenting" the worksite. To the contrary, it has been held that employees present at the worksite, even if they are not engaged in the actual construction, are protected by the statute (Reilly v. McKilligan Indus. Supply Corp., 124 A.D.2d 953).

We do not find the reduced judgment of $450,000 to be excessive.

Concur — Rosenberger, J.P., Ellerin, Ross, Asch and Kassal, JJ.