Partner Nicholas Marino prevailed in New York’s Appellate Division, First Department in a case involving an injured laborer who fell from a ladder in the course of his employment with Foran Glennon’s client, a cleaning company.
The plaintiff, a construction cleaner, allegedly sustained significant personal injuries from a 2014 accident which he claims left him permanently disabled and resulted in multiple surgeries. His counsel issued a multi-million-dollar settlement demand.
Prior to this accident, the cleaning company’s scope of work was memorialized only in a brief purchase order issued to the general contractor which did not contain an indemnification clause.
Following the accident, the cleaning company and general contractor executed an agreement referencing the scope and dates of work, including the date of the accident. This new contract also included a facially valid indemnification clause in favor of the general contractor. Because the plaintiff was prohibited from filing suit against his employer due to the Workers’ Compensation Law, he commenced an action against the property owner and general contractor. After the lawsuit was filed, the general contractor commenced a third-party action against the cleaning company seeking contractual indemnification, as permitted by the General Obligations Law.
During discovery in the lower court, the general contractor’s project manager testified that:
- As of the date of accident, an oral agreement had been reached with the cleaning company’s owner whereby they were to indemnify his company
- The subsequently executed contract was a memorialization of the agreement, and therefore was intended to have retroactive effect
The general contractor moved for summary judgment seeking contractual indemnification.
Nick opposed the motion, noting that while a subsequently memorialized indemnification agreement may be deemed enforceable, doing so requires a consensus “as of” the event in question, and the subsequent memorialization must make the retroactive application clear.
The motion court agreed, denying the motion and holding that the contract was not retroactively enforceable, but not granting our client summary judgment on that issue.
The general contractor appealed to the First Department noting that because the scope of the job was so minor, the post-accident contract was to apply retroactively. Nick opposed the appeal on the same grounds and asked the court to grant summary judgment dismissing the contractual indemnification claim.
The First Department affirmed the lower court’s decision and granted our client summary judgment dismissing the contractual indemnification claim. The court noted that the general contractor had failed to establish that the parties had come to an agreement to indemnify “as of” the date of loss, and that there was insufficient evidence to establish that the contract was to have retroactive effect.
The general contractor’s subsequent motion to reargue and for leave to appeal to the Court of Appeals was denied.
Nick handles catastrophic injury cases in New York and concentrates his practice on civil litigation, with particular focus on the defense of landlords and contractors in New York Labor Law, premises liability, environmental exposure, negligent security and motor vehicle litigation, from inception through trial.