Keys v City of New York

2023 NY Slip Op 34565(U)

December 27, 2023

Supreme Court, New York County

Docket Number: Index No. 156867/2018

Judge: Richard Latin

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
156867/2018 KEYS, KEVIN vs. CITY OF NEW YORK

Motion No. 008

Page 1 of 5

The following e-filed documents, listed by NYSCEF document number (Motion 008) 336, 337, 338, 339, 

340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 360, 363, 364, 365, 

366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382

were read on this motion to/for JUDGMENT – SUMMARY .

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. RICHARD LATIN PART 46M

Justice 

---------------------------------------------------------------------------------X INDEX NO. 156867/2018

 MOTION DATE 09/22/2023

 MOTION SEQ. NO. 008

DECISION + ORDER ON 

MOTION

KEVIN KEYS,

 Plaintiff, 

- v -

THE CITY OF NEW YORK, VOLUNTEERS OF AMERICAGREATER NEW YORK, INC.,DEPARTMENT OF 

HOMELESS SERVICES, RICHARDS PLUMBING AND 

HEATING CO.,

 Defendant. 

---------------------------------------------------------------------------------X

RICHARDS PLUMBING AND HEATING CO. 

 Plaintiff,

 -againstRVS CONSTRUCTION CORP

 Defendant.

--------------------------------------------------------------------------------X

 

 Third-Party

Index No. 595045/2019

THE CITY OF NEW YORK 

 Plaintiff,

 -againstRVS CONSTRUCTION CORP

 Defendant.

--------------------------------------------------------------------------------X

 

Second Third-Party

Index No. 595770/2021

INDEX NO. 156867/2018

NYSCEF DOC. NO. 390 RECEIVED NYSCEF: 01/02/2024

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156867/2018 KEYS, KEVIN vs. CITY OF NEW YORK

Motion No. 008

Page 2 of 5

Upon the foregoing documents, it is ordered that defendants/third-party plaintiff Richards 

Plumbing and Heating Co. (“Richards”) and defendant/second third-party plaintiff City of New 

York’s motion for summary judgment is determined as follows:

Plaintiff commenced this action to recover for injuries stemming from an incident where 

he fell into an unprotected, uncovered, and unsecured portion of a trench where he was working 

as a laborer on a construction site located at 22 E. 119th Street, New York, New York on January 

16, 2018. With this motion Richards and the City of New York seek summary judgment on their 

contractual indemnification claims against third-party defendant RVS Construction Corp. 

(“RVS”).

The proponent of a summary judgment motion has the burden of submitting

evidence in admissible form demonstrating the absence of any triable issues of fact and

establishing entitlement to judgment as a matter of law (see Giuffrida v Citibank Corp.,

100 NY2d 72 [2003]; see also Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Only

when the movant satisfies its prima facie burden will the burden shift to the opponent “to

lay bare his or her proof and demonstrate the existence of triable issues of fact” (

Alvarez, 68 NY2d at 324; see also Zuckerman v City of New York, 49 NY2d 557

[1980]).

“A party is entitled to full contractual indemnification provided that the ‘intention to 

indemnify can be clearly implied from the language and purposes of the entire agreement and the 

surrounding facts and circumstances’” (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 

774, 777 [1987], quoting Margolin v New York Life Ins. Co., 32 NY2d 149, 153 [1973]; see 

also Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486, 490 [2004]). A construction contract is 

unenforceable and void against public policy where it seeks to indemnify a promisee against 

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Motion No. 008 

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liability resulting from the promisee’s own negligence (General Obligations Law § 5-322.1[1]). 

However, an indemnification provision that permits indemnification “to the fullest extent 

permitted by law” contains savings language that would allow a construction manager to receive 

partial and proportionate indemnification for its contractors’ negligence, even where the 

construction manager may have also been negligent (see Brooks v Judlau Contracting, Inc., 11 

NY3d 204 [2008]; Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 [1997]; 

Guzman v 170 West End Ave. Associates, 115 AD3d 462 [1st Dept 2014]). 

The subject contract and indemnity agreement contain two separate indemnification 

clauses which each run in favor of the movants and state as follows: 

To the fullest extent permitted by law, the Subcontractor shall 

indemnify and hold harmless the Owner, Contractor . . . from and 

against claims, damages, losses, and expenses, including but not 

limited to attorney’s fees, arising out of or resulting from 

performance of the Subcontractor’s Work under this Subcontract, 

provided that any such claim, damage, loss or expense is attributable 

to bodily injury, sickness, disease or death, or injury to or 

destruction of tangible property (other than the Work itself), but 

only to the extent caused by the negligent acts or omissions of the 

Subcontractor, the Subconctractor’s Sub-subcontractors anyone 

directly or indirectly employed by them or anyone for whose acts 

they may be liable, regardless of whether or not such claim, damage, 

loss or expense is caused in part by a party indemnified hereunder. 

Such obligation shall not be construed to negate, abridge, or 

otherwise reduce other rights obligations of indemnity; which would 

otherwise exist as to a party or person described in this Section 4.6. 

To the fullest extent permitted by law, Subcontractor shall defend, 

indemnify, and hold harmless Richards Plumbing & Heating Co., 

Inc, RPH Properties LLC, Project Owner, Contractor, Architect and 

consults, agents and employees of any of them individually or 

collectively from and against all claims, damages, liabilities, losses 

and expenses. This includes but not limited to attorneys’ fees arising 

out of or in any way connected with the performance or lack of 

performance of the work under the agreement and/or any change 

orders or additions to the work included in the agreement, provided 

that any such claim, damage, liability, loss or expense is attributable 

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156867/2018 KEYS, KEVIN vs. CITY OF NEW YORK

Motion No. 008

Page 4 of 5

to bodily injury, sickness, disease or death or physical injury to 

tangible property including loss of use of that property, or loss of 

use of tangible property that is not physically injured, and caused in 

whole or in party by any actual or alleged:

Act or omission of the Subcontractor or anyone directly or indirectly 

retained or engaged by it or anyone for whose acts it may be liable; 

or Violation of any statutory duty, regulation, ordinance, rule or 

obligation by an Indemnitee provided that all the violation arises out 

of is in any way connected with the Subcontractor’s performance or 

lack of performance of the work under the agreement.

Here, it is clear that the parties intended for RVS to indemnify Richards and the City 

of New York. To the extent that an ambiguity exists between the two provisions, it will be 

construed in favor of the non-drafter, RVS (see Lai Ling Cheng v Modansky Leasing Co., 73 

NY2d 454 [1989]). Thus, RVS need only indemnify movants for its negligent acts or 

omissions.

In support of the motion, movants submit, inter alia, the expert affidavit of Robert J. 

Monaco, P.E., professional civil engineer. In forming his opinion, Monaco reviewed the 

deposition transcripts and discovery exchanged. Monaco ultimately opined with a reasonable 

degree of engineering certainty that the plaintiff was solely supervised, directed, and controlled 

at the worksite by his employer RVS, that RVS was responsible for site safety since they dug 

the trench, and that the accident was caused by plaintiff’s lack of supervision, direction, and 

proper control. 

In opposition to the motion, RVS fails to attempt to rebut the expert affidavit or allege that 

any entity other than RVS controlled or supervise plaintiff or was responsible for ensuring that the 

trench was secured. Instead, RVS argues based on prior testimony that it was Richards who had 

inappropriately opened the trench in contravention of their agreement, as they had on four or five 

other known occasions. Thus, inasmuch as RVS raised a triable issue of fact as to whether Richards

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Motion No. 008 

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was also negligent and a cause of the accident in possibly opening up the trench and failing to 

inform RVS who was responsible for making sure it was secure and safe for their workers, the 

movants are only entitled to partial contractual indemnification, potentially limited by any 

apportionment against them. 

Accordingly, movants’ motion for summary judgment is granted solely to the extent that 

Richards and the City of New York are entitled to partial indemnification. 

This constitutes the decision and order of the Court. 

12/27/2023 $SIG$

DATE RICHARD LATIN, J.S.C. 

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION 

 GRANTED DENIED X GRANTED IN PART OTHER 

APPLICATION: SETTLE ORDER SUBMIT ORDER 

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

INDEX NO. 156867/2018

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