SACS Appellate Group Wins Affirmance of Order Dismissing Indemnification Claims Arising From Crane Collapse

This appeal to the Appellate Division, First Department arose from the collapse of a crane during construction of the No. Seven Subway Line Extension.  The owner sought indemnity from J&E Industries, LLC (“J&E”) under the terms of the company’s sub-contract with the prime contractor for the installation of rebar.  According to the owner, J&E agreed to indemnify it for all losses arising out of the company’s “work”.  But, the contract contained a provision specifically excluding “hoisting” from the scope of J&E’s work.  Despite the fact that plaintiff was injured while fleeing from a collapsing crane that J&E did not own, operate, or maintain, the owner contended it was entitled to contractual indemnity because plaintiff’s injuries occurred as the crane was moving into position and before any rebar was attached. 

After an extended oral argument, the First Department upheld the dismissal of the contractual indemnification claims.  See DeGidio v. City of N.Y., __ A.D.3d __, 2019 N.Y. App. Div. LEXIS 7241 (1st Dep’t Oct. 8, 2019).  As an initial matter, the Court observed that J&E was not responsible for the crane’s maintenance or operation.  The Bench further reasoned that it was of no consequence that the crane was moving into position to lift a load of J&E’s materials where the operative agreement expressly excluded “hoisting” from the scope of the company’s work.  Against this backdrop, the Court concluded that plaintiff’s injuries plainly did not arise out of J&E’s work, and thus the indemnity clause was not triggered.

Kudos to Chris Simone, who argued the appeal and drafted the brief with Jonathan Shaub.