New York’s Appellate Division decides thousands of cases a year, particularly the First and Second Departments. Given this volume, there are bound to be some inconsistences and some…how should we put this… questionably reasoned decisions.

The Second Department’s decision in Bermejo v. New York City Health & Hosp. Corp. is one such case. In Bermejo, the plaintiff fell when the wooden platform from which he was working collapsed. When the plaintiff’s co-workers arrived after the collapse, they found one end of the platform on the floor and the other end hanging from the scaffold at a 45 degree angle. The plaintiff moved for and was granted summary judgment on his 240 cause of action.

The general contractor, Ibex, moved for and was granted summary judgment against the plaintiff’s employer, Marble, on its contractual indemnification claim. In granting Ibex’s motion, the court specifically held there was no evidence of Ibex’s negligence. Despite no evidence of Ibex’s negligence, the Second Department turned around and granted the owners common law indemnification against Ibex. So how could Ibex be compelled to indemnify the owners if it was not negligent? Because Ibex “exercised its authority to supervise plaintiff’s work and implement safety procedures.”

The court’s holding seems contradictory and at odds with the Court of Appeals decision in McCarthy v. Turner Construction Co., 17 N.Y.3d 369 (2011). In Turner, the Court limited a party’s duty to indemnify another to situations where the indemnitee was negligent or where the indemnitee actually supervised the injured plaintiff’s work. The court specifically held that having the authority to implement safety procedures is insufficient.

In our view, the Bermejo court’s holding requiring Ibex to indemnify the owners because it had implemented safety procedures is insufficient. Perhaps the court, in holding that Ibex “exercised its to supervise plaintiff’s work,” meant that Ibex indeed supervised plaintiff’s work. Otherwise, a motion to reargue, or for leave to appeal to the Court of Appeals, is a likely in the pipeline.

Thanks to Gabe Darwick for his contribution to this post. If you have an questions or comments, please email Paul at