Opinion
December 9, 1997
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Plaintiff alleges that she was injured on a construction site when she slipped on a greasy substance and fell down a flight of stairs while carrying a crate of coffee she was bringing to her co-workers. The purchase order retaining plaintiff's employer, an electrical subcontractor, contained a clause under which it was to indemnify and hold harmless the general contractor and owner from all personal injury claims arising out of the work described in the purchase order, provided such claims were "caused in whole or in part by any negligent act or omission of the Subcontractor, any sub-contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder". The subcontractor's motion for summary judgment was properly denied insofar as it sought dismissal of the third-party complaint, there being issues of fact as to whether the subcontractor, or a party for which it was responsible under the indemnity clause, was negligent in allowing plaintiff to carry a crate loaded with coffee down the staircase. Also properly denied was that portion of the subcontractor's motion as sought to dismiss plaintiff's complaint, which, to the extent it is based on Labor Law § 241 (6) and 12 NYCRR 23-1.7 (d), need not have alleged that the owner or the general contractor had actual notice of the slippery condition (see, Leon v. J M Peppe Realty Corp., 190 A.D.2d 400, 408-409, citing Tuohey v. Gainsborough Studios, 183 A.D.2d 636). However, it was error to grant the general contractor's cross motion for summary judgment on its contractual indemnity claim, since issues exist, first, as to whether its negligence, if any, in failing to properly maintain the stairways contributed to the accident, in which event the indemnity clause, which contemplates a complete rather than partial shifting of liability, would be unenforceable under General Obligations Law § 5-322.1 GOB (see, Itri Brick Concrete Corp. v. Aetna Cas. Sur. Co., 89 N.Y.2d 786), and, second, as to whether the negligence, if any, of the subcontractor or a party for whom it was responsible contributed to the accident, in the absence of which the indemnity clause would not apply (see, Malecki v. Wal-Mart Stores, 222 A.D.2d 1010).
Concur — Milonas, J. P., Rosenberger, Nardelli, Rubin and Mazzarelli, JJ.