Robinson v City of New York

[*1] Robinson v City of New York 2005 NY Slip Op 51067(U) Decided on July 11, 2005 Supreme Court, Bronx County Victor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 11, 2005
Supreme Court, Bronx County

Raymond Robinson, Plaintiff(s),

against

City of New York, VOLMAR CONSTRUCTION INC., O'BRIEN-KREITZBERG, INC., URS CORPORATION - NEW YORK, URS GREINER- FACILITIES DESIGN, INC., STARBORO CONSTRUCTION CORP., KANTA ELECTRONIC CORP., CRESCENT CONTRACTING CORPORATION, C.D.E. AIR CONDITIONING CO., INC., GIBRALTAR WATERPROOFING, INC., AND GIBRALTAR MASONRY, Defendant(s).



8537/01



APPEARANCES:

Greg Csaszar, Esq.

Thelen Reid & Priest LLP

Attorneys for defendants URS Consultants, Inc. and O'Brien-Kreitzberg, Inc.

875 Third Avenue

New York, NY 10022

212-603-2000

Defendant City of New York

By Charles T. Glaws, Esq.

Gruvman, Giordano & Glaws, LLP

61 Broadway, Suite 2715

New York, NY 10006

212-269-2353

Jeremy S. Tishler, Esq.

Malapero & Prisco, LLP

Attorneys for Defendant Gibraltar Waterproofing, Inc.485 Fifth Avenue

New York, NY 10017

212-661-7300

NO OTHER APPEARANCES

Paul A. Victor, J.

RELIEF SOUGHT

Defendants URS Consultants, Inc. (URS) and O'Brien-Kreitzberg, Inc. (OK) move for summary judgment pursuant to CPLR 3212 dismissing the complaint against them.

Defendant City of New York (City) cross-moves for summary judgment pursuant to CPLR 3212 on its claim for contractual indemnity against OK.

ISSUES PRESENTED

This motion includes tort and contract issues, between an owner and its construction manager arising out of an open and notorious violation of section 240 Labor Law. As a threshold matter, the scope of the liability of the construction manager as a statutory "agent" of the owner under the Labor Law is at issue. In addition, the contractual obligations of the construction manager are also at issue. However, since the contract, including its indemnity provision, is ambiguous and inartfully drawn, and since the contract issues, which have been observed by the court, have not been fully presented and briefed by the parties, the court is faced with the conundrum of how far it should search the record in an effort to fully determine all pretrial issues. It should be noted that several of the Labor Law issues were previously presented to and determined by this court on a prior motion. (4 Misc. 3rd 542 [edited decision]; N.Y.L.J.6/21/04 at 19 col. 1 [unabridged decision])

FACTS AND PROCEDURAL HISTORY

As stated in the court's prior decision, plaintiff was injured on September 15, 2000, when he fell from a three story scaffold, approximately 30 feet above ground, while employed in connection with a construction project at 181st Street and Webster Avenue in Bronx County, which involved the construction of a building for the Department of Transportation of the City of New York. According to the plaintiff, the scaffold was not equipped with safety railings; and the [*2]record does not indicate that plaintiff was supplied with any other safety device, such as a safety harness. Plaintiff alleges causes of action under Labor Law 240, 241 (6), and 200. Defendant Volmar was the general contractor on the project; defendant Gibraltar was the supplier of the scaffold from which plaintiff fell, as well as the masonry contractor on the project. The court on the prior motion, inter alia, denied the City's motion to dismiss the Labor Law 240 (1) cause of action, and denied the City's motion seeking common law and contractual indemnity against Gibraltar with leave to renew at the appropriate juncture.

Defendant URS, the project architect, and defendant OK, the project construction manager, now move for summary judgment dismissing the complaint against them. As to defendant URS, the moving defendants argue that URS' duties as project architect were administrative in nature, and largely confined to determining contract compliance by contractors, responding to inquiries by contractors, and issuing contract changes. URS maintains that because it exercised no actual authority or control over the construction, it can not be held liable under any statute, or for common law negligence.

With respect to OK, the moving defendants maintain that OK's role was limited to monitoring construction activities and reporting discrepancies and deficiencies in performance to the City. In particular, OK argues that it was not responsible for instituting or maintaining worksite safety, nor for providing safety engineers. In particular, OK points to Paragraph 4.4.18 of the contract between it and the City which provides that OK shall: "Review the safety program as developed by each of the Contractors and monitor the adherence of each Contractor to such program. If the Construction Manager observes non-compliance with an applicable safety regulation, he shall notify the Commissioner and the appropriate Contractor. The Construction Manager shall not be responsible for prescribing, instituting or maintaining a safety program nor for providing safety engineers." [Emphasis supplied.]

The contractual obligation of OK to "observe non-compliance with applicable safety regulations ... [and to ] notify the Commissioner" is ambiguous because of the introductory word "if", which appears to add the happenstance of observation as a condition to notification.[FN1] This possible contractual obligation is not fully addressed by the parties. In any event, as to tort responsibility under the Labor Law, OK argues that it cannot be held liable under Labor Law §§ 240 or 241 (6) as an "agent" of the owner. OK additionally argues that it lacked authority to supervise or control the work or the worksite, and thus is not liable under Labor Law § 200, or for common law negligence. [*3]

Defendant City opposes OK's motion, and cross-moves for summary judgment for contractual indemnity from OK. The City argues that issues of fact exist as to whether OK is a statutory agent of the City under Labor Law §§ 240 or 241 (6), and whether it was authorized by the contract to monitor safety practices and halt work that failed to comply with accepted safety standards. The City relies on various sections of the agreement, including Section 4.4.16, which provides that OK shall: Take such action as required to prevent installation of work, material or equipment which has not been properly approved or otherwise fails to conform with contract requirements and inform Commissioner promptly of such action and the reasons for and outcome of such action.

The City, in addition, seeks summary judgment on its cross-claim for contractual indemnity from OK. In that regard, the contract provides at Article 39: "...the Construction Manager agrees to indemnify and hold harmless the City, each officer, agent and employee to the City, against any and all claims against any of them for damages, costs and expenses arising out of the negligent performance of the work as provided by this Agreement."

Defendant Gibraltar Waterproofing, Inc., similarly contends that defendant OK may be found liable as an agent of the defendant City. Neither plaintiff nor any other party appears on the motion.

APPLICABLE PRINCIPLES OF LAW

Law Relating to Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion. (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 320 [1986].) Thus, the moving party must tender [FN2] sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Once that initial burden has been satisfied, the "burden of production" (not the burden of persuasion) shifts to the opponent, who must now go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. The burden of persuasion, however, always remains where it began, i.e., with the proponent of the issue. Thus "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." (Director, Office of Workers Compensation Programs v. Greenwich Collieries, supra , 512 U.S. at 272; 300 East 34th Street Co. v. Habeeb, 248 AD2d 50, 683 NYS2d 175 [1st Dept. 1997].)

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395, 144 NE2d 387, 165 NYS2d 49 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 NE2d 1068, 413 NYS2d 141 [1978].) Thus, when the existence of [*4]an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 8 NY2d 8, 167 NE2d 328, 200 NYS2d 627 [1960]; Sillman v. Twentieth Century Fox Film Corp., supra ).

The role of the court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. As the Court stated in Knepka v. Tallman, (278 AD2d 811, 718 NYS2d 541 [4th Dept. 2000]):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcock, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 669, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341, 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present credibility issues for trial (see, Schoen v. Rochester Gas & Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra ).

(See also, Yaziciyan v. Blancato, 267 AD2d 152, 700 NYS2d 22 [1st Dept. 1999] ["The deponent's arguably inconsistent testimony elsewhere in his deposition merely presents a credibility issue properly left for the trier of fact."But see Perez v. Bronx Park South Associates, A.D.2d . N.Y.S.2d [1st Dept. 2001], in which the Court held that the submission of a one-page affidavit from a neighbor, which was in conflict with plaintiff's deposition testimony, was insufficient to raise an issue of fact; Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439, 441 ["feigned" issues do not raise question of fact]; Singh v. Kolcaj Realty Corp, A.D.2d . N.Y.S.2d [1st Dept. 2001][plaintiff's expert's opinion that illegally parked car was proximate cause of accident was a legal conclusion which was of no consequence, and could not defeat defendant's motion for summary judgment].)

Law Relating to Construction Managers

A construction manager is often hired when there is no general contractor, and customarily functions as an agent of the owner in an advisory capacity only. Nevertheless, when the particular contract calls for the construction manager to enforce safety regulations and stop the work when unsafe practices occur, the courts have reasoned that the construction manager has the requisite supervision and control of the work so as top render the construction manager liable as a statutory agent under the Labor Law. (See, Havlin v. City of New York, 792 NYS2d 464, 2005 NY App. Div. LEXIS 3726 [1st Dept. 2005] [sufficient evidence existed to support the inference that defendant construction manager Kreisler Borg Florman had supervision and control over the hazard-producing work and over safety at the worksite]; Caradori v. Med Inn Ctrs. of Am., LLC, 5 AD3d 1063, 773 NYS2d 713 [4th Dep.t 2004], amended on other grounds, 775 NYS2d 729, 2004 NY App. Div. LEXIS 6367 [4th Dept. 2004] [construction manager did not have the power to supervise or control the methods of the contractors' or subcontractors' work, and thus was not liable under Labor Law § 241 (6) as a statutory agent]).

In Walls v. Turner Construction Company, 2005 NY LEXIS 1091 (2005), the Court of Appeals found that the particular construction manager was a statutory agent, and thus liable under Labor Law 240 when the plaintiff fell while attempting to construct a scaffold on a second floor window during the process of replacing windows. The construction manager's duties were, [*5]in the Court's opinion, atypical, in that the construction manager was under a contractual duty to monitor the window replacement, to make sure that workers were furnished proper safety gear, and to "immediately direct the Trade Contractors to cease work which constitutes [an] unsafe practice or hazardous condition." As the Court observed id at *3-*4):

"Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1), one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury (see Russin v Louis N. Picciano & Son, 54 NY2d 311, 317-318, 429 NE2d 805, 445 NYS2d 127 [1981]; see also Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 878, 631 NE2d 110, 609 NYS2d 168 [1993]). 'When the work giving rise to [the duty to conform to the requirements of section 240 (1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory 'agent' of the owner or general contractor' (Russin, 54 NY2d at 318). Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law (see Blake v Neighborhood Hous. Servs. of New York City, Inc., 1 NY3d 280, 293, 803 NE2d 757, 771 NYS2d 484 [2003])."

The Court listed the factors which were germane to its reasons for finding the construction manager to be an agent of the owner, which included the specific contractual terms creating the agency; the absence of a general contractor; the construction manager's duty to oversee the construction site and the trade contractors; and the acknowledgment at a deposition by the construction manager's site superintendent that the construction manager had the duty to control work site activities and issue orders to stop unsafe practices.

Law Relating to Architects

Labor Law §§ 240 (1) and 241 (6) specifically exempt from liability professional engineers, architects and landscape architects whose direction or control of the work is confined to planning and design.

Law Relating to Contractual Indemnity

Contractual indemnity provisions are quite common in construction agreements. In essence, an indemnification agreement is a promise by which one party, the indemnitor (usually a subcontractor) promises another party to the contract, the indemnitee ( usually an owner or general contractor), that the indemnitor will pay specified damages arising out of certain accidents or activities. It must be noted that General Obligation Law § 5-322.1 provides that an agreement, which purports to indemnify the indemnitee against liability for damages caused or resulting in whole or part from indemnities negligence, "is against public policy and is void and unenforceable" (but see infra, discussion of the doctrine of partial indemnification and Dutton Charles Pankow Builders, Ltd., 296 AD2d 321 745 NYS2d 520 [2002].

These agreements have spawned an abundance of litigation at both the local and appellate levels of the court; and the issues which arise from such agreements can be complex, not only because of statutory restrictions and prohibitions (General Obligations Law § 5-322.1 [*6][void agreements]; Worker's Compensation Law § 11 [grave injury requirement])[FN3] but also because of the vague language often employed in such agreements (either inadvertently or purposely by the drafter). The ambiguous provisions are usually incorporated in the language which sets forth the contractual predicates which must be triggered before an indemnitor may be held responsible. Contractual indemnity agreements in construction cases usually fall into two broad categories i.e., those in which indemnitor agrees to provide indemnity irrespective of indemnitor's fault, and those in which the indemnitor's fault is a necessary predicate for the obligation to indemnify. Since there are many variations on the wording used to provide contractual indemnity, the court is compelled to carefully parse and scrutinize each contract provision and compare same with the fact pattern presented in each case.

Appellate decisions can be the cause of confusion for the casual reader who does not observe that broad pronouncements made in such decisions should be restricted to the factual context of the particular case presented. (See e.g., Correia v. Professional Data Management Inc., 259 AD2d 60, 693 NYS2d 596 [1st Dept. 1999], where the court stated that the "indemnitor's negligence ... is irrelevant in the context of contractual indemnity ... ") This statement, although accurate in Correia, is not true for all cases. In Correia, the court was only dealing with the first category of indemnification agreements, and the language of the indemnification agreement there did not require that indemnitor's fault was a necessary condition of the agreement. Thus, as stated by the Appellate Division, without full explication, indemnitor's negligence in Correia was indeed irrelevant to its obligation to provide indemnity.

The first category of indemnity agreement includes agreements whereby the indemnitor agrees to provide indemnity for accidents "arising out of" or "in connection with" the work to be performed irrespective of any fault on the part of the indemnitor. (See, e.g., Keena v Gucci Shops, 300 AD2d 82, 751 NYS2d 188 [1st Dept. 2002] [indemnitor agreed to indemnify owner for "all claims ... arising in whole or in part and in any manner" from indemnitor's obligation to provide site safety protection in connection with "any work" performed by indemnitor pursuant to the subcontract].); see also, Correia, supra "[indemnitor] shall hold [indemnitee] harmless from all liability, loss, cost or damage, including attorneys' fees, from claims or injuries or death, while on or near the project, of its employees or employees of its subcontractors, or by reason of claims of any person or persons, including [indemnitee], for injuries to person or property, occasioned in whole or in part by any act or omission of [indemnitee], [*7]its representatives, employees, subcontractors or suppliers, and whether or not it is contended [indemnitee] contributed thereto in part, or was responsible therefor by reason of non-delegable duty."

In such a case, because of the particular language employed in defining the scope of the agreement to indemnify, the duty to indemnify is not contingent upon proof that the indemnitor had been negligent.

Another example of the first type of indemnity agreement was present in Velez v Tishman Foley Partners (245 AD2d 155, 666 NYS2d 591 [1st Dept. 1997]). In that case, the owner's indemnity agreement with the subcontractor provided that the duty to indemnify included "all damages of any kind or nature, including without limitation, damages to persons or property caused by or in connection with [subcontractor's] work to the extent permitted by law... however caused and of whatever nature, arising directly or indirectly from the acts or omissions of [subcontractor], its agents, employees, vendors or lower-tier subcontractors and their agents or employees, in the performance of the work under this Subcontract". The Court held that when plaintiff's accident occurred because the cross-bracing of the hoist tower (which was provided by the subcontractor/indemnitee), gave way, the accident "came within the parameters of the broadly worded contractual indemnification agreement," and the indemnitee was entitled to recover irrespective of whether or not the indemnitor was negligent.

A reader must distinguish and be careful not to apply the literal language of Corrreia v. Professional Data Management, Inc, supra and other appellate cases which only apply to the first category of cases. As stated above Correia states in broad terms, "it is the indemnitor's negligence that is irrelevant in the context of contractual indemnity, while the negligence of the indemnitee... is critical, and if established, would run afoul of General Obligations § 5-322.1". [emphasis added]. The reader, therefore, must be careful not to apply that language to the second category of cases in which the indemnity agreement does in fact require negligence on the part of the indemnitor as a triggering event.

Not every indemnity agreement uses the same language, or requires the same factual predicates, in order to trigger the duty to indemnify. A good example of the second category of cases is Keohane, infra, where the indemnity agreement between general contractor and a subcontractor required the subcontractor to indemnify the general contractor against all claims arising out of the subcontractor's work "only to the extent caused in whole or in part by negligent acts or omissions of [the subcontractor] ...." [emphasis added]. In Keohane, the plaintiff, a laborer on a construction project employed by the subcontractor-indemnitor, fell from a scaffold when a metal brace, which he was holding to support himself while descending, broke free from the scaffold. The scaffold had not been erected by the plaintiff's employer, the subcontractor-indemnitor. The general contractor sought summary judgment on its third-party claim against the subcontractor-indemnitor for contractual indemnification. The motion was denied, as the subcontractor-indemnitor's negligence was not established. (Keohane v Littlepark House Corp., 290 AD2d 382, 736 NYS2d 664 [1st Dept. 2002]).

Trial courts are therefore constrained to carefully parse the particular language of the indemnity agreement to determine both compliance with General Obligation Law § 5-322.1, as [*8]well as the scope of the indemnitor's contractual duty which defines the triggering factors which will obligate the indemnitor to provide indemnity. Once it is determined that an agreement to indemnify has been triggered, the inquiry shifts from the indemnitor to the indemnitee. If the obligation to indemnify has been triggered, it is then necessary to determine if the indemnitee was or was not negligent (or if an issue of fact as to the indemnitee's negligence exists). If the indemnitee has not been negligent, and the other contractual conditions are satisfied, the indemnitee is entitled to full indemnification under the contract.

Where an indemnitee has been negligent, indemnitee may be entitled to "partial indemnification". It must be noted that a non-negligent indemnitee may recover fully even if the agreement's language is overly-expansive and appears to violate General Obligations Law § 5-322.1, in that it purports to indemnify the indemnitee for its own negligence. Some agreements which appear to provide indemnification for an indemnitee's own negligence in violation of General Obligations Law § 5-322.1, have been held not to be void, and are stated to be enforceable in whole or in part. (See e.g., Dutton v. Charles Pankow Builders, Ltd, supra ; Brown v. Two Exch. Plaza Partners , 76 NY2d 172, 556 N.Y.S. 2 992 [1990]); and the discussion of partial indemnification, infra).

Partial Indemnification

Partial indemnification was mentioned and left open by the Court of Appeals in Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., (89 N.Y2d 786, 658 NYS2d 903 [1997]). It is thus still an unsettled issue although it has been recognized as a valid doctrine by the First Department (Dutton v. Charles Pankow Builders Ltd, supra . Under this doctrine, an indemnitee, despite its own negligence, and the mandate of General Obligations Law § 5-322.1, is entitled to be reimbursed by the indemnitor for that portion of the fault allocated by a jury to the fault of indemnitor or others. For example, when a broadly worded indemnification agreement exists and the issue of fault has been presented to the jury and the indemnitee is found by the jury to have been 40% at fault for the happening of an accident, the indemnitee (including a plaintiff's employer) will seek to have the indemnitor pay the 60% not attributable to the negligence of the indemnitee. In effect, this form of "partial indemnity" would constitute a contract-based form of contribution, which would permit recovery even against the plaintiff's employer under the contractual indemnity exception to Workers' Compensation Law § 11. There is considerable confusion as to whether partial indemnity is a valid doctrine.(Compare Cohen and Sokoloff, "Partial Indemnity - Alive and Well," N.Y.L.J., November 19, 2004, at 4, col. 4, with DeSantis, "Indemnification Update," October 21, 2004, at 4, col. 4. As stated above, the issue of the validity of the doctrine was left open in Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., (89 NY2d 786, 658 NYS2d 903, 680 NE2d 1200 [1997]). In Itri, the contract of indemnity contemplated full, but not partial, indemnity. However, partial indemnity was recognized by the First Department in Dutton v. Charles Pankow Builders, Ltd,., supra , which stated:"Insofar as pertinent, the challenged indemnification clause provides that 'to the fullest extent permitted by applicable law,' the subcontractor will indemnify the general contractor for all liabilities arising out of personal injuries sustained in connection with the subcontractor's work 'regardless of whether [the general contractor is] partially negligent ... excluding only liability created by the [general contractor's] sole and exclusive negligence.' We find that the clause calls for partial, not full, indemnification of the general contractor for personal injuries partially caused by its [*9]negligence, and is therefore enforceable. We reach this conclusion in view of the phrases limiting the subcontractor's obligation to that permitted by law (see, 89 NY2d at 795) and excluding liability created by the general contractor's sole and exclusive negligence.

[Emphasis added]

Therefore, if the doctrine of partial indemnity is ultimately upheld by the Court of Appeals, it is possible, if the contract of indemnity is properly worded, that a partially negligent indemnitee may recover from an indemnitor.

DISCUSSION

Motion by URS for summary judgment on liability

That part of the motion by URS as architect is granted, and all claims and cross-claims against it are dismissed. As an architect which did not supervise or control the work, URS is not liable either under the Labor Law, or under the common law. The Court notes the absence of any opposition to the motion by URS.

Motion By OK for summary judgment on liability

Since OK did not actively control the manner of the work performed by plaintiff, the sole viable basis for liability on the part of OK in tort under the Labor Law, is as an "agent" of the owner under Labor Law §§ 240 (1) or 241 (6). The cases cited above illustrate the general rule that a construction manager is not, in the normal course of events, an "agent" of the owner under the Labor Law. Comparing the present facts to the facts presented in Walls indicates that OK was not a statutory agent under the Labor Law.

First, unlike the situation in Walls, there was a general contractor (defendant Volmar) on the project under consideration. Secondly, despite the defendants' arguments, there is no evidence that defendant OK possessed the power to stop work based on unsafe practices. Indeed, the key contractual provision at issue, Paragraph 4.4.18 of the contract, provides only that OK shall notify the Commissioner and the appropriate Contractor when unsafe practices exist. Conspicuously absent from the provision is any reference to any authority to issue an order to stop work. Indeed, such authority is dispelled by the language immediately following which provides that the "Construction Manager shall not be responsible for prescribing, instituting or maintaining a safety program nor for providing safety engineers." The high degree of control exercised by the construction manager in Walls is absent in the present case. It is thus clear that OK is not a statutory agent charged with potential liability under the Labor Law.

Cross-motion on the City's claim for contractual indemnity against OK

As noted above, the scope of the duty to indemnify is defined in the contract of indemnity. The contract provides "...the Construction Manager agrees to indemnify and hold harmless the City, each officer, agent and employee to the City, against any and all claims against any of them for damages, costs and expenses arising out of the negligent performance of the work as provided by this Agreement." [Emphasis added)

The City argues that the "negligent performance of the work" means all of the work involved in the construction, i.e., the project itself. OK argues that the "work" means OK's work as construction manager. The term "work" is not defined in the contract, but a review of the contract indicates that "work" and "project" are used interchangeably. While this supports the [*10]City's argument, on the other hand, the City's claim would in effect require that OK provide indemnity and thus assume liability for any accident on the jobsite a startling proposition at best. This is the first ambiguity in the indemnity agreement.

Assuming that the Indemnity agreement was intended to impose only a contractual duty on OK to indemnify the City in those cases in which OK was negligent, it is still not clear if indemnification is warranted. Did the contract intend to equate OK's negligence with a failure to perform its contractual duties of inspection? In other words, if OK had a duty to observe a clear safety violation and notify the commissioner was its failure to do so a breach of contract [FN4] as well as "negligence" within the meaning of the indemnity portion of the contract?

The daily reports submitted by the construction manager contained a section entitled, "Safety Inspection," which seems to indicate some duty to report on safe practices at the worksite On the other hand, deposition testimony which the City cites as evidence of OK's control over the manner in which the work was performed relates to instructions by OK's employees to fill voids in cinder blocks or to use rebar before concrete was poured. These instructions relate to the quality of construction, and not to the manner in which work was to be performed. No implication of control over safety can be predicated in on this testimony.

It has already been determined that OK's control did not rise to that level required to impose liability as an "agent" under the Labor Law. This finding alone does not negate a finding of fault based on an alleged contractual obligation to observe and report on safety matters. As noted above, the duty to report safety violations, if any, appears to have been qualified and conditioned on whether or not OK "happened" to have observed such condition. In addition, OK argues that it was to perform "technical" inspections only, as opposed to "safety" or "general" inspections; and. that its contractual duties relate to keeping track of materials furnished and work performed and do not relate to supervision of safety practices. The City argues otherwise.

A motion for summary judgment searches the record and looks to the sufficiency of the underlying evidence (See, Del Castillo v Bayley Seton Hosp., 232 AD2d 602, 649 NYS2d 41 [2d Dept 1996].)

In view of the fundamental ambiguities in the contract (i.e. the definition of the term "work"), as well as issues of fact relating to OK's contractual duties and responsibility with/without safety violations, this court cannot search the record and grant summary judgment.

CONCLUSION

This constitutes the decision of the Court.

Settle order.

7-11-05 /s/

DATEHon. Paul Victor, J.S.C. Footnotes

Footnote 1: "If" is one of many parts of speech which are referred to as "subordinating conjunctions". A Subordinating Conjunction (sometimes called a dependent word or subordinator) comes at the beginning of a Subordinate (or Dependent) clause and establishes the relationship between the dependent clause and the rest of the sentence. It also turns the clause into something that depends on the rest of the sentence for its meaning ... [S]ome of the subordinating conjunctions ... are also prepositions, but as subordinators they are being used to introduce a clause and to subordinate the following clause to the independent element in the sentence". See, http:/webster.commnet.edu/grammar/conjunction.htm.

Footnote 2: There is no requirement that proof be submitted in the form of affidavit, as opposed to other acceptable forms, such as deposition testimony. Muniz v. Bacchus, A.D.2d . N.Y.S.2d (1st Dept. 2001).

Footnote 3: Worker's Compensation Law § 11 prevents common law indemnity against employers in construction cases except when the plaintiff has suffered a "grave injury," but does not prohibit claims for contractual indemnity by contractors and owners against employers. Consequently, following the enactment of Worker's Compensation Law § 11, contractors and owners have an even greater incentive to attempt to contractually shift the risk of loss by way of an indemnity agreement which would provide coverage in those instances when no grave injury exists. These observations are made to provide a complete background for indemnity cases. As OK is not plaintiff's employer, Worker's Compensation Law § 11 is not at issue on this motion.

Footnote 4: Quite apart from the indemnity agreement itself, it would seem that a breach of contract arising out of a failure to observe and report safety violations (if such a duty existed), would warrant damages. Would those damages be commensurate with the liability of the defendant owner? The issue has not been presented by the parties and is not therefore given further consideration.