First Department finds factual issues in §241(6) exclusion, and holds that claim by a lessee's contractor triggers the lessor's indemnity
| 241(6), contract law, contracts, Gartner + Bloom, indemnity, indemnity provision, labor law, Michael E. Kar
By: Michael E. Kar, Esq.
Associate, New York
Date: December 27, 2017
On March 1, 2018, the First Department entered their decision in Karwowski v. 1407 Broadway Real Estate LLC. This decision gleans two important considerations for insurers and practitioners, in the Appellate Division’s: (i) holding that a lessor’s indemnity provision will be triggered by a claim by a lessee’s contractor; and (ii) finding of factual issues with the lower court’s exclusion of a contractor’s workshop from liability under 241(6).
Defendant 1407 Broadway Real Estate LLC (“Broadway”) is the owner of the building wherein this claim arose. Broadway holds an operating lease for the entirety of the building, located in Midtown Manhattan, New York. Defendant Cayre Grp Ltd. (“Cayre”) leases the 41st and 42nd floors of Broadway’s building, and holds a lease extension with Broadway. Plaintiff is a former employee of XCEL Interior Contracting, Inc. (“XCEL”), a third-party defendant in the action. While employed by XCEL, Plaintiff injured his hand while cutting plywood on an unprotected table saw, located on the 16th floor of Broadway’s building. Plaintiff’s injury was in the furtherance of a project undertaken by Cayre, for which XCEL was hired as a contractor.
Pursuant to the lease extension with Broadway, Broadway was given direction and coordination over XCEL, who was one of the lease’s memorialized approved contractors (“[a]ll work done by the contractor [XCEL] must be coordinated with the Building Manager”). This lease extension also contained the following indemnity, recited in pertinent part: “Tenant shall indemnify, defend and save harmless Landlord… from and against (a) all claims of whatever nature against Landlord arising from any act, omission or negligence of Tenant, its subtenant, contractors, licensees, agents, servants, invitees, employees or visitors…”
Broadway cross-claimed below for summary judgment as to the issue of their contractual indemnification, a claim that was not granted. The First Department reversed and found for Broadway on this issue. The Appellate Division found that this indemnity was clear and unambiguous. In response, Cayre argued that this provision required a finding of “active negligence” or fault on behalf of Cayre. The First Department disagreed with this assertion, in holding that “all that is necessary to trigger the provision is a claim arising from any act or omission of Cayre or Cayre’s contractor…” (emphasis added). Cayre’s contractor here was XCEL, employer of the Plaintiff at the time of the alleged accident. The court held that no negligence was needed to trigger the indemnity, and instead, all that was needed was work being done by Cayre or their contractors within the building leased by Broadway.
Factual issue found in Labor Law §241(6) analysis:
At the Supreme Court below, Plaintiff’s claims under Labor Law §241(6) were dismissed. Section 241(6) imposes on property owners (and lessee’s under Article 10 of New York Labor Law) the duty to provide reasonable protection and safety for workers, and to comply with all Department of Labor regulations. The issue in application of §241(6) was, primarily, centered around the physical location at which the injury took place. The location was the 16th floor of the building in question. A portion of the 16th floor was XCEL’s in practice, an area where they would keep materials and tools used for renovations within the building. However, no personnel or office furniture existed in a permanent capacity, and XCEL had no lease and did not pay any rent for the space. XCEL maintains a separate permanent office and workshop in Queens.
In support of their motion for summary judgment as to the applicability of Labor Law §241(6), Defendant Cayre asserted that the 16th floor is a permanent workshop where “for the past 10 years, the… plaintiff reported to work each day….” Their argument concludes that due to these facts the 16th floor is not the statutorily protected “area in which construction, excavation or demolition work is being performed….” N.Y. Labor Law §241(6).
In granting Cayre’s motion for summary judgment below, the Supreme Court found that the 16th floor of the building “was a permanent workshop controlled by XCEL, not a temporary staging area ancillary to the Project and controlled by Cayre.” By extension, this also released Broadway under §241(6).
The First Department reversed and remanded for the court below, finding that “there are disputed issues of fact concerning whether the 16th floor space qualifies as a construction area.” In remanding, the Appellate Division cited such cases as Gerrish v. 56 Leonard, 147 A.D.3 511 (1st Dept. 2017) (factors for determining applicability of 241(6) are physical proximity, common ownership, and operation of off-site premises) and Gonnerman v. Huddleston, 78 A.D.3d 993 (2d Dept. 2010) (241(6) extends to areas where materials are being readied for use, contrary to areas where materials are merely stored for future use).
Lastly, and most important for Labor Law practitioners, the First Department then reasoned that because §241(6) would apply if the saw had been utilized on the 41st floor, the Plaintiff should not have an “automatic loss of the protections afforded by the statute” because Plaintiff chose instead to cut the wood on the 16th floor, and then bring it up to the 41st floor in an elevator.
Application of this trigger to indemnity warrants widespread consideration across the legal universe. The analysis of Labor Law §241(6) by the First Department should be applied by insurance carriers and Labor Law practitioners to all future cases concerning the Section. Insurers should be aware that the designation of a physical area as a construction area is increasingly subject to more liberal interpretations – especially in regards to defense-side summary judgments motions.