Indemnitee Status May Be Established by “Additional Insured” Listing in an Insurance/Indemnity Rider; Labor Law § 241(6) Turns on Whose Work Created the Code Violation

1. Introduction

This appeal arose from a Manhattan tenant build-out at 28 Liberty Street. Plaintiff Nick Almer, an apprentice electrician employed by nonparty Forest Electric, alleged he tripped over a “drag line” (a rope used to pull cable through conduit) that had been left attached to partially installed data cable, coiled and hung from a passageway ceiling, with the line dragging along the floor.

The owner was Summit Glory Property LLC (a Fosun subsidiary). Benchmark Builders, Inc. served as general contractor. The tenant, nonparty Wolters Kluwer, retained Linear Technologies, Inc. for low-energy data/communications cabling, and Linear subcontracted that scope to TRI Ram LLC d/b/a Momentum Data (Momentum).

The key issues were (i) whether defendants and subcontractors could obtain summary judgment on Labor Law § 200/common-law negligence and Labor Law § 241(6) claims tied to Industrial Code provisions governing tripping hazards and material storage, and (ii) how the parties’ contracts allocated defense/indemnity and insurance-procurement obligations—particularly who qualifies as a named indemnitee and how “Owner” and “prime contract” references are construed.

2. Summary of the Opinion

The First Department largely sustained the denial of summary judgment on liability, holding that triable issues existed as to whether Momentum created the tripping condition and whether Linear, obligated to perform/supervise the installation, lacked notice. The Court also held triable issues existed on the Labor Law § 241(6) theory predicated on Industrial Code §§ 23-1.7(e)(1) and 23-2.1(a)(1).

On contractual risk transfer, the Court modified the order to:

• Grant Linear conditional contractual indemnity against Momentum under the Linear/Momentum agreement;
• Dismiss Summit/Fosun/Benchmark’s contractual indemnity claims against Momentum;
• Grant Summit and Fosun conditional contractual indemnity against Linear under the Linear/Wolters Kluwer contract (via an “Insurance and Indemnity Rider” tying indemnitees to additional-insured listings);
• Dismiss Benchmark’s contractual indemnity claim against Linear (Benchmark not named and not shown to be Summit’s agent for indemnity purposes).

The Court further held Linear did not establish, as a matter of law, that it procured the required insurance, so breach-of-contract (failure-to-procure) claims were not dismissed.

3. Analysis

3.1. Precedents Cited

Labor Law § 200 / Common-law negligence (notice, supervisory role, and hazardous condition)

• Ross v Curtis-Palmer, 81 NY2d 494 (1993) and Davis v Trustees of Columbia Univ. in the City of N.Y., 199 AD3d 481 (1st Dept 2021): Cited for the general framework that § 200 and common-law negligence liability may attach where a defendant exercised supervision/control over the work or had actual/constructive notice of a dangerous condition. The Court relied on these principles to find factual disputes given evidence Momentum installed/left the drag line and Linear was contractually obligated to perform and supervise that installation.
• Agli v 21 E. 90 Apartments Corp., 195 AD3d 458 (1st Dept 2021) and Pereira v New Sch., 148 AD3d 410 (1st Dept 2017): Used to support denying summary judgment to owner/GC-side defendants where they fail to make a prima facie showing negating negligence/§ 200 liability.
• Correia v Professional Data Mgt., Inc., 259 AD2d 60 (1st Dept 1999): Invoked for the proposition that where underlying negligence/§ 200 liability remains unresolved, summary judgment on common-law indemnity/contribution claims (either seeking them or seeking dismissal of them) is generally inappropriate.

Labor Law § 241(6) (who must be in privity; whose work created the violation; supervisory authority)

• Russin v Louis N. Picciano & Son, 54 NY2d 311 (1981) and DeMaria v RBNB 20 Owner, LLC, 129 AD3d 623 (1st Dept 2015): Cited for the idea that privity with the injured worker’s employer and direct supervision over the injured worker are not dispositive when the alleged Industrial Code violation arises from another contractor’s work that created the hazardous condition.
• Nascimento v Bridgehampton Constr. Corp., 86 AD3d 189 (1st Dept 2011) and Weber v Baccarat, Inc., 70 AD3d 487 (1st Dept 2010): Applied to hold that a party with supervisory authority over the subcontractor’s work (here, Linear over Momentum) can face § 241(6) exposure for violations arising from that subcontractor’s work.
• Bazdaric v Almah Partners LLC, 41 NY3d 310 (2024) and Rudnitsky v Macy's Real Est., LLC, 189 AD3d 490 (1st Dept 2020): Used to frame the “integral to the work” vs “debris/tripping hazard” dispute under Industrial Code § 23-1.7(e) as fact-intensive and typically for the jury—supporting the Court’s conclusion that the cable/drag line condition could constitute a Code-violative tripping hazard.

Contractual indemnity (named indemnitees; “arising out of” language; agency; contract interpretation)

• Hartrum v Montefiore Hosp. Hous. Section II Inc., 237 AD3d 429 (1st Dept 2025): Central to the Court’s indemnity analysis. It supported (i) treating the party defined as “Contractor” as an intended indemnitee in the subcontract, and (ii) recognizing that an “Insurance and Indemnity Rider” that ties indemnitees to the additional-insured schedule can effectively identify who receives contractual indemnity.
• Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268 (1st Dept 2007): Cited to interpret broad causal language—“arose out of,” “in connection with,” “a result of or consequence of”—as encompassing accidents sufficiently connected to the subcontractor’s work, which supported Linear’s entitlement to indemnity from Momentum.
• Licata v AB Green Gansevoort, LLC, 158 AD3d 487 (1st Dept 2018): Cited for the rule that triggering an “arising out of” indemnity clause is not contingent on proving the indemnitor’s negligence—reinforcing that contractual indemnity may apply even before fault is finally determined.
• Tavarez v LIC Dev. Owner, L.P., 205 AD3d 565 (1st Dept 2022) and Tonking v Port Auth. of New York & New Jersey, 3 NY3d 486 (2004): These drove two outcomes: (i) entities not named as indemnitees generally cannot claim contractual indemnity, and (ii) “agency” arguments must be supported by evidence; Benchmark and Fosun were not shown to be Summit’s agents for indemnity purposes, and Benchmark was not listed as an additional insured/indemnitee.

Failure to procure insurance (breach of contract)

• Dorset v 285 Madison Owner LLC, 214 AD3d 402 (1st Dept 2023) and Shala v Park Regis Apt. Corp., 192 AD3d 607 (1st Dept 2021): Cited to deny summary judgment where the party obligated to procure insurance fails to conclusively demonstrate compliance with the contractual insurance requirements.

3.2. Legal Reasoning

(a) Labor Law § 200 / common-law negligence

The Court treated the alleged hazard as a condition created by the work—Momentum’s installation left a drag line dragging along a passageway floor. Because Linear was contractually responsible to perform and supervise the work and did not establish it lacked notice of the condition, the Court held summary judgment was improper. For Summit/Fosun/Benchmark, the Court likewise found the prima facie burden unmet, leaving fact questions as to their potential negligence/§ 200 liability.

(b) Labor Law § 241(6) and Industrial Code §§ 23-1.7(e)(1), 23-2.1(a)(1)

The Court rejected arguments that would narrow § 241(6) based on lack of privity with Benchmark/Forest Electric or lack of direct supervision over plaintiff. It emphasized that the alleged violations arose from Momentum’s work practices (leaving/positioning the drag line and coiled cable), not from plaintiff’s own work activity. It also held Linear’s supervisory authority over Momentum’s work was sufficient to subject Linear to § 241(6) exposure for violations arising from Momentum’s work.

On whether the Industrial Code provisions were violated, the Court flagged competing factual characterizations—whether the coil/drag line was “integral to the work” (and thus arguably not a tripping hazard) versus “debris” or improper placement/storage that should have been removed or secured. Those competing inferences created jury questions.

(c) Contractual indemnity—who is covered and what language triggers coverage

The Court enforced indemnity where the indemnitee was actually identified in the relevant contract structure and the accident had the required causal nexus to the subcontractor’s work.

• Linear → Momentum (Linear/Momentum contract): Linear, as “Contractor” under the agreement, was within the class protected by Momentum’s indemnity promise; and the accident “arose out of”/was “in connection with” Momentum’s work. The Court granted Linear conditional indemnity—i.e., effective depending on ultimate findings (notably, indemnity cannot be finally fixed in a way that violates anti-indemnity principles if Linear were found solely negligent).
• Summit/Fosun/Benchmark → Momentum: These parties were not named indemnitees in the Linear/Momentum contract, and attempts to fit them within “Owner/agent” terminology failed because “Owner” referred to Wolters Kluwer (the tenant and Linear’s contracting counterparty), and agency was not shown. Their contractual indemnity claims against Momentum were dismissed.
• Summit and Fosun → Linear (Linear/Wolters Kluwer contract): The “Insurance and Indemnity Rider” defined indemnitees by reference to entities listed as additional insureds. Summit and Fosun appeared in the insurance requirements portion, and the Court treated that listing as establishing intended indemnitee status notwithstanding formatting (“above” vs “below”) arguments.
• Benchmark → Linear: Benchmark was not listed as an additional insured/indemnitee and was not shown to be Summit’s agent for indemnity purposes; therefore its contractual indemnity claim failed.

(d) Failure to procure insurance

Linear did not conclusively prove it obtained the insurance required by contract, so breach-of-contract claims premised on failure to procure coverage survived.

3.3. Impact

• Broader § 241(6) exposure for upstream contractors supervising a subcontractor’s scope: The decision reinforces that § 241(6) claims can attach to a contractor that supervises the violative work, even absent direct supervision over the injured worker, where the hazard stems from the subcontractor’s work methods/temporary conditions.
• “Integral to the work” remains fact-driven for tripping hazards: By treating the cable/drag line condition as a jury question under Industrial Code § 23-1.7(e), the Court signals that defendants should not expect summary judgment where the same object can plausibly be characterized as necessary work material yet also improperly placed/left in a walkway.
• Contract drafting/reading lesson: indemnity beneficiaries may be identified through insurance schedules: The ruling gives practical force to riders that link indemnity beneficiaries to the “additional insured” list—potentially expanding or clarifying indemnity coverage beyond the body of the indemnity clause itself.
• “Owner” labels are contextual, not intuitive: Parties cannot assume “Owner” means building owner; here it meant the tenant contracting party. This affects indemnity chains in multi-tier construction/fit-out arrangements, especially in leased premises projects.
• Insurance-procurement defenses require proof, not assertion: Summary judgment on failure-to-procure claims will be difficult without complete documentary proof of compliant coverage.

4. Complex Concepts Simplified

• Labor Law § 200: New York’s codification of common-law workplace safety negligence. Liability often depends on whether a defendant controlled the work or had notice of a dangerous condition.
• Labor Law § 241(6): Imposes a nondelegable duty on owners/contractors to comply with specific Industrial Code safety rules; a plaintiff must identify a sufficiently specific Code provision and show it was violated and caused the injury.
• Industrial Code § 23-1.7(e)(1): Generally addresses tripping hazards in passageways (e.g., accumulations/obstructions). Litigation often turns on whether the condition was a normal/integral part of the work or an improper obstruction.
• Industrial Code § 23-2.1(a)(1): Generally concerns safe storage/placement of materials so they do not create hazards in work areas/passageways.
• “Arising out of” in indemnity clauses: Broad causal language; it can be triggered by a connection to the work, not necessarily by proof of the indemnitor’s negligence.
• Conditional contractual indemnity: A court can award indemnity “conditionally” at summary judgment when the contractual trigger is met, but the final obligation depends on how fault is ultimately allocated at trial/settlement.
• Additional insured vs indemnitee: “Additional insured” is insurance status; “indemnitee” is a contractual right to be defended/indemnified. This case treats an “Insurance and Indemnity Rider” as tying those concepts together by using the additional-insured list to identify intended indemnitees.

5. Conclusion

Almer v Summit Glory Prop. LLC underscores two practical rules in New York construction litigation. First, for Labor Law § 241(6), courts focus on whose work created the alleged Industrial Code violation and whether the defendant had supervisory authority over that violative work—not on privity with the injured worker or direct supervision of the worker. Second, for contractual indemnity in multi-contract projects, indemnitee status depends on careful contract identification: “Owner” may mean the tenant contracting party rather than the fee owner, and an “Insurance and Indemnity Rider” can make the additional-insured schedule functionally determinative of who is entitled to contractual indemnity.