TLS&S Congratulates Attorneys Robert Nobel and Jeffrey Briem for Obtaining Summary Judgment and Dismissal of All Claims Against the Client in a Labor Law Action Venued in Kings County
December 13, 2011

The personal injury action arose out of a fall from a ladder on a construction project in Manhattan. The property was to be developed into a ten-story, 29-unit condominium with a commercial storefront. The owner of the property retained the trade subcontractors directly. By written agreement, the owner retained a company to act as the trade subcontractor in connection with the performance of the HVAC, electrical and plumbing work for the project. The trade subcontractor orally subcontracted a portion of the electrical work to plaintiff's employer. The plaintiff fell from a ladder while performing work at the site, sustaining a broken arm and back injuries.

Plaintiff brought suit against the owner, and, in turn, the owner brought third party claims for contribution as well as common law and contractual indemnity against the trade subcontractor and employer. In support of its claims against the employer, the owner produced two purported indemnity agreements - one which referred to a different project and another which included the proper project but which was dated after the subject accident.

Mr. Nobel and Mr. Briem argued that neither agreement was sufficient to meet the requirements of Workers' Compensation Law Section 11. The agreement which applied to a different project was insufficient under Rodrigues v. N & S Building Contractors, Inc., 5 N.Y.3d 427, 432 (2005). Prior to assessing if an agreement meets the requirement of Workers Compensation Section 11, the Court must assess whether the agreement even applies to the work which gave rise to the accident. As the agreement applied only for a different project (which the employer denies, as they submitted testimony that this document was back-dated), the indemnity provision could not be read so broadly as to provide indemnity for the subject accident.

Mr. Nobel and Mr. Briem argued that the document dated after the accident was not sufficient to satisfy the Workers' Compensation Law Sec. 11 requirement that the document be executed prior to the accident. Mr. Nobel and Mr. Briem distinguished the case from Flores v. Lower East Side Service Center, Inc., 4 N.Y.3d 363 (2005), as the contract in Flores had been exchanged by the parties prior to the accident and there was no dispute regarding the contract's applicability. In the instant case, the owner testified that he was unaware that any of the work had been subcontracted before the accident. Further, he acknowledged that the trade subcontract required that all further subcontracts be approved in writing and two months after the accident he sent a letter to all trades indicating that no such approval had ever been given. Lastly, he admitted that he had never even heard of the employer's company until after the accident and that he had never entered into a contract for them to be on site.

On the basis of these arguments and the cited testimony, the Court found that the employer met its burden to establish that no written indemnity agreement existed prior to the accident, and dismissed all claims.

The firm congratulates Mr. Nobel and Mr. Briem on their victory.