| Collins v Switzer Constr. Group, Inc. |
| 2010 NY Slip Op 00008 [69 AD3d 407] |
| January 5, 2010 |
| Appellate Division, First Department |
| Gene Collins et al., Respondents, v Switzer ConstructionGroup, Inc., et al., Appellants, and Time, Inc., et al., Respondents. (And a Third-PartyAction.) |
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Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 15, 2009,which, to the extent appealed from, denied defendant Switzer Construction Group, Inc.'s motionfor summary judgment dismissing plaintiff's Labor Law § 241 (6) claim, and granted thecross motion by defendants Time, Inc. and 135 West 50th Owner, LLC for leave to amend theiranswer to assert cross claims for contractual indemnification against Switzer and for summaryjudgment on said cross claims, unanimously affirmed, without costs.
Plaintiff, an electrician, was injured when, in the course of installing conduit sleeves, hestepped off a ladder and slipped on debris scattered around the ladder. Industrial Code (12NYCRR) § 23-1.7 (e) (2) requires that areas of floors where persons work "be kept freefrom accumulations of . . . debris . . . insofar as may be consistentwith the work being performed." Pointing to plaintiff's statement in accident reports that heslipped on conduit debris, Switzer seeks to dismiss plaintiff's Labor Law § 241 (6) claimon the ground that the debris on which he slipped was created by him and was therefore "anintegral part of the work he was performing" (see Appelbaum v 100 Church, 6 AD3d 310, 310 [2004] [internalquotation marks and citations omitted]). However, plaintiff's deposition testimony that therewere other trades working at the same time and that the debris on which he slipped was differentfrom any of the electrical materials he had been using raises an issue of fact whether he createdthe debris.
Switzer's claim of prejudice resulting from Time's and 135 West 50th Owner's amendment oftheir answer to assert cross claims for contractual indemnification against it is belied by the[*2]fact that Time and 135 West 50th Owner demanded, on twoseparate occasions, a defense and indemnification under the parties' agreement. Moreover,Switzer cannot reasonably claim to be surprised by its own contractual obligations. As neitherTime nor 135 West 50th Owner was negligent in connection with plaintiff's accident, theindemnification and defense clauses in their agreement are not unenforceable and void underGeneral Obligations Law § 5-322.1 (see Brooks v Judlau Contr., Inc., 11 NY3d 204 [2008]). We haveconsidered Switzer's remaining arguments and find them unavailing. Concur—Tom, J.P.,Andrias, McGuire and Manzanet-Daniels, JJ.