Labor Law 240: Court Dismisses Contractor’s Third-Party Claims Against Plaintiff’s Employer/Subcontractor Retained by Another Contractor For Different Project at Same Location

April 9, 2018

Huber v. 85 Broad Street, LLC., et al. (N.Y. Sup. Ct. New York Co.)

Deborah A. Summers, Esq. and Lori B. Lewis, Esq.


In Huber, the plaintiff was allegedly injured in a fall from a defective ladder in the course of his employment with an emergency electrical subcontractor retained to provide storm surge recovery services at 85 Broad Street in Manhattan following Hurricane Sandy.  Plaintiff commenced an action seeking damages for injuries he allegedly sustained as a result of the fall.  A defendant general contractor commenced a third-party action against the subcontractor/employer asserting claims for contractual indemnification and common law indemnification and contribution.


The subcontractor/employer moved for summary judgment, arguing first that it did not owe contractual indemnification because it had three other projects underway at the same building at the time of the plaintiff’s fall and (according to the project log book and deposition testimony of the project foreman) the plaintiff was working on a completely different project than the one alleged – i.e., was working on a separate project for which the subcontractor/employer was hired by another contractor, not by the third-party plaintiff general contractor.  Therefore, the subcontractor/employer argued, any claims by the third-party plaintiff general contractor should be dismissed because the accident did not arise out of work performed by or on behalf of that contractor.  In addition, the subcontractor/employer argued that the common law indemnification and contribution claims should be dismissed because the plaintiff did not allege a “grave injury” under the Workers Compensation Law.  The Supreme Court, New York County (Hon. Erika M. Edwards, J.S.C.) agreed, dismissing all claims against the electrical subcontractor/employer.