| Mantovani v Whiting-Turner Contr. Co. |
| 2008 NY Slip Op 08100 [55 AD3d 799] |
| October 21, 2008 |
| Appellate Division, Second Department |
| John P. Mantovani, Plaintiff, v Whiting-Turner ContractingCompany et al., Defendants, and Herbert G. Martin, Inc., Defendant and Third-PartyPlaintiff-Respondent-Appellant. ADCO Electrical Corp., Third-PartyDefendant-Appellant-Respondent. (And Additional Third-Party Actions.) |
—[*1] Morris, Duffy, Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea Alonso ofcounsel), for respondent-appellant.
In an action to recover damages for personal injuries, the third-party defendant ADCO ElectricalCorp. appeals, as limited by its notice of appeal and brief, from so much of an order of the SupremeCourt, Westchester County (Giacomo, J.), entered May 18, 2007, as denied that branch of its motionwhich was for summary judgment dismissing the third-party cause of action for contractualindemnification, and the defendant third-party plaintiff Herbert G. Martin, Inc., cross-appeals, as limitedby its notice of appeal and brief, from so much of the same order as denied that branch of its crossmotion which was for summary judgment on that cause of action.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
The plaintiff was an employee of ADCO Electrical Corp. (hereinafter ADCO), which was thesubcontractor of Herbert G. Martin, Inc. (hereinafter Martin), the electrical contractor on animprovement project at the Yonkers Public Library. The plaintiff, who had been assigned to "light duty"as the result of a previous back condition, was injured while standing on a hydraulic lift operating agunpowder-actuated tool to drill holes in a cement ceiling.[*2]
The Workers' Compensation Law generally bars claims againstemployers for indemnification or contribution arising out of injuries sustained by an employee actingwithin the scope of employment. An exception exists where there is a provision in a written contractentered into prior to the accident or occurrence, pursuant to which the employer expressly agreed tocontribution or indemnification with respect to the person or entity asserting a right to contribution orindemnification (see Workers' Compensation Law § 11; Rodrigues v N & S Bldg. Contrs., Inc., 5NY3d 427 [2005]; Flores v Lower E.Side Serv. Ctr., Inc., 4 NY3d 363, 369 [2005]; Falkowski v Krasdale Foods, Inc., 50 AD3d 1091 [2008]; Martelle v City of New York, 31 AD3d400 [2006]; Portelli v Trump EmpireState Partners, 12 AD3d 280 [2004]).
Here, there was sufficient evidence of a written contract between ADCO and Martin, in the formof a certificate of liability insurance, providing that ADCO would, under certain circumstances,indemnify Martin, to warrant denial of that branch of ADCO's motion which was for summary judgmentdismissing the third-party cause of action for contractual indemnification (see Spiegler v Gerken Bldg. Corp., 35AD3d 715 [2006]; Martelle v City ofNew York, 31 AD3d 400 [2006]; Gilbert v Albany Med. Ctr., 21 AD3d 677 [2005]). The Supreme Courtalso properly denied that branch of Martin's cross motion which was for summary judgment on theissue of ADCO's obligation to indemnify it. Martin's submissions revealed the existence of a triableissue of fact as to whether, under the circumstances of this case, the terms of the Certificate of LiabilityInsurance obligated ADCO to indemnify Martin (see Matter of Heimbach v Metropolitan Transp.Auth., 75 NY2d 387, 392 [1990]; Daries v Haym Solomon Home for Aged, 4 AD3d 447 [2004]). Skelos,J.P., Fisher, Dickerson and Belen, JJ., concur.