Jamieson v. Noble Constr. Group, LLC — Summary-Judgment Burdens in Construction Indemnification: “Not Triggered” Proof, Freedom-from-Negligence, and Insurance-Procurement Evidence

1. Introduction

Case: Jamieson v Noble Constr. Group, LLC, 2026 NY Slip Op 02634 (App. Div., 2d Dep’t Apr. 29, 2026).
Posture: Appeal and cross-appeal from an order resolving competing summary-judgment requests in a Labor Law/personal injury construction accident case.

Accident allegations: Plaintiff Clifford Jamieson allegedly fell when vertical perimeter safety netting at the edge of the first floor “gave way at the top and the bottom.”
Primary defendants: The project’s construction manager and the owner/tenants (collectively, “the defendants”).
Third-party defendants: (1) Monolithic Contracting, Inc. (alleged installer of the netting) and (2) Lippolis Electric, Inc. (electrical subcontractor and plaintiff’s employer).

Key issues on appeal: Whether the parties met their respective summary-judgment burdens on (i) contractual indemnification (against Monolithic and Lippolis), (ii) common-law indemnification (against Monolithic), and (iii) breach of contract for failure to procure insurance (against Monolithic), in the context of New York’s construction-accident framework and General Obligations Law § 5-322.1.

2. Summary of the Opinion

The Second Department modified the Supreme Court’s order by reinstating the defendants’ contractual-indemnification claim against Lippolis. Specifically, the appellate court held that Lippolis failed to make a prima facie showing entitling it to summary judgment dismissing contractual indemnification because it did not demonstrate that the plaintiff’s injuries did not “arise out of” his work with Lippolis (i.e., it did not show the indemnity clause was not triggered or was otherwise inapplicable).

In all other relevant respects, the Second Department affirmed the denials of summary judgment:

  • The defendants were not awarded contractual indemnification against Monolithic or Lippolis because they did not establish they were free from negligence.
  • Monolithic was not entitled to dismissal of contractual indemnification because it did not show the accident did not arise out of its netting work; factual disputes remained as to proper installation.
  • The defendants were not awarded common-law indemnification against Monolithic because they failed to show they lacked supervision/control responsibility for the methods of Monolithic’s work.
  • The defendants were not awarded summary judgment on the insurance-procurement breach claim because they did not submit evidence that Monolithic failed to procure the required additional-insured coverage.

3. Analysis

A. Precedents Cited

1) Summary judgment to dismiss contractual indemnification: the movant’s “not triggered/inapplicable” burden

The court anchored its analysis in the rule that the party moving for summary judgment dismissing a contractual-indemnification claim bears the burden to show it was not contractually obligated to indemnify. It quoted and applied:

  • Garcia v Fed LI, LLC, 239 AD3d 942, 946: the movant must make a prima facie showing that it was not obligated to indemnify.
  • Burgos v 14 E. 44 St., LLC, 203 AD3d 688, 689: the movant can meet that burden by showing the indemnification clause was “not triggered” or “otherwise inapplicable.”
  • Selis v Town of N. Hempstead, 213 AD3d 878, 880: reinforcing the “triggered/inapplicable” framework.
  • Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38: invoked to support the “arising out of” causation/trigger concept commonly used in indemnity and additional-insured disputes.

How they influenced the decision: These authorities collectively supplied the doctrinal lane the Second Department required Lippolis to stay in: as the movant seeking dismissal, it had to negate the contractual trigger (here, whether the injury “arose out of” Lippolis’s work). The court held Lippolis did not do so, and therefore dismissal was improper regardless of what the defendants could (or could not) prove at that stage.

2) Contractual indemnification in construction: General Obligations Law § 5-322.1 and “freedom from negligence”

On the defendants’ request for affirmative summary judgment granting contractual indemnification, the court relied on:

  • Crutch v 421 Kent Dev., LLC, 192 AD3d 977, 981: when the indemnity provision is subject to General Obligations Law § 5-322.1, the indemnitee must prove itself free from negligence; it cannot be indemnified “to the extent” of its own negligence.
  • Davies v Simon Prop. Group, Inc., 174 AD3d 850, 855: consistent requirement that a party seeking contractual indemnity must establish freedom from negligence.

How they influenced the decision: Even though the indemnity claims survived in part (notably against Lippolis due to Lippolis’s failed prima facie showing), the defendants still could not obtain judgment in their favor on indemnification because they did not eliminate triable issues regarding their own potential negligence—especially their supervisory authority over the work that allegedly led to the netting failure.

3) Supervisory control and negligence allocation: evaluating the defendants’ claimed lack of control

The court measured the defendants’ “no negligence” argument against cases addressing supervisory control:

  • Reisman v Bay Shore Union Free School Dist., 74 AD3d 772, 774: cited for the principle that authority to supervise/control work can support negligence exposure (and thus defeat contractual indemnification at summary judgment).
  • Cedillo v Nautilus Realty Ltd. Partnership, 219 AD3d 1300, 1302 (cf.): used as a contrast point; the defendants here failed to show they lacked the requisite authority/control.

How they influenced the decision: These citations supported the appellate court’s conclusion that the defendants did not carry their burden to show they were free from negligence because they did not establish absence of supervisory authority over the plaintiff’s work or Monolithic’s netting work.

4) Contractual indemnification against Monolithic: “arising out of” and factual disputes about the subcontractor’s work

The court emphasized it was undisputed that Monolithic was responsible for installing the perimeter netting for falling-debris protection and cited:

  • Dow v Consolidated Edison Co. of N.Y., Inc., 226 AD3d 648, 649: supporting denial of dismissal where the accident may arise out of the subcontractor’s work and factual disputes remain.

How it influenced the decision: Because the netting at issue was within Monolithic’s assigned scope, Monolithic could not obtain dismissal without conclusively negating a work-related nexus to the accident. The court found a triable issue about whether Monolithic’s installation provided sufficient fall protection.

5) Common-law indemnification: actual negligence/control requirements

For common-law indemnification, the court applied:

  • Zong Wang Yang v City of New York, 207 AD3d 791, 796: common-law indemnification requires proof the claimant was not negligent and that the proposed indemnitor’s negligence contributed, or (absent negligence) that the indemnitor had authority to direct/supervise/control the work.
  • Crutch v 421 Kent Dev., LLC, 192 AD3d at 981: reiterating the dual requirements (claimant free from negligence; indemnitor at fault or in control).
  • Caban v Plaza Constr. Corp., 153 AD3d 488, 490: applied to deny summary judgment where the party seeking common-law indemnification failed to show it did not supervise/control the injury-producing work methods.

How they influenced the decision: These cases framed the court’s denial of the defendants’ bid for common-law indemnity: on this record, the defendants did not eliminate the possibility they exercised (or had) supervision/control over the methods of Monolithic’s netting installation.

6) Failure to procure insurance: proof of noncompliance is required

The court relied on:

  • Breland-Marrow v RXR Realty, LLC, 208 AD3d 627, 629: to obtain summary judgment, the movant must show a contract required additional-insured coverage and that the requirement was not complied with.
  • Tingling v C.I.N.H.R., Inc., 120 AD3d 570, 571: similar proof structure for insurance-procurement claims.

How they influenced the decision: Even if the contract demanded that Noble Construction Group, LLC be named as an additional insured, the defendants still had to produce evidence of Monolithic’s noncompliance. The court held they did not—so summary judgment was unavailable.

B. Legal Reasoning

1) Distinct burdens depending on the relief sought

A central (and often misunderstood) feature of the decision is that the court applied different prima facie burdens depending on who moved and what relief they sought:

  • Movant seeking dismissal of contractual indemnification (Lippolis; Monolithic): must show the clause is not triggered or otherwise inapplicable—often by negating the “arising out of” nexus between the accident and the movant’s work.
  • Movant seeking a grant of contractual indemnification (defendants): must show (among other things) the indemnitee is free from negligence when General Obligations Law § 5-322.1 applies.

This explains the mixed result: the defendants lost their attempt to win indemnification outright (they could not prove freedom from negligence), yet they won the reinstatement of their claim against Lippolis because Lippolis, as a dismissal movant, failed to negate contractual triggering.

2) “Arising out of” is treated as a work-related nexus, not a final negligence determination

The court treated the “arising out of” concept as a causal/operational connection between the injury and the subcontractor’s work or operations, not as a requirement that the subcontractor be proven negligent at the summary-judgment stage. Hence:

  • Lippolis could not obtain dismissal merely by pointing to unresolved fault questions; it had to show the accident did not arise out of the plaintiff’s work with Lippolis.
  • Monolithic could not obtain dismissal given its undisputed responsibility for installing the perimeter netting and the open factual question whether that installation provided sufficient protection.

3) General Obligations Law § 5-322.1 blocks indemnification for the indemnitee’s own negligence

The decision reinforces that in construction contracts, indemnity provisions are constrained by General Obligations Law § 5-322.1: an owner/contractor/construction manager cannot be indemnified for its own negligence. Therefore, the defendants’ inability to eliminate issues of supervisory authority/control defeated their attempt to obtain indemnification as a matter of law.

4) Common-law indemnification hinges on supervision/control and fault allocation

The defendants’ common-law indemnification claim against Monolithic failed at the summary-judgment stage for a related reason: they did not demonstrate they were free from negligence (including via supervision/control of the injury-producing work methods), a prerequisite under the cited cases.

5) Insurance-procurement claims require affirmative evidence of breach

On the procurement-of-insurance claim, the court applied a straightforward evidentiary rule: it is not enough to show the contract required additional-insured coverage; the movant must show the coverage was not actually procured. The defendants produced no such evidence, so they could not win summary judgment.

C. Impact

  • Sharper motion practice in indemnity disputes: The opinion underscores that dismissal motions on contractual indemnity are won by negating the trigger (e.g., “arising out of”), not by arguing that negligence is unproven or that the indemnitee may be negligent.
  • Indemnitees must “clear themselves” to win indemnity early: Owners/construction managers seeking an affirmative grant of contractual indemnification must present evidence eliminating their own negligence—often requiring proof about who had authority to direct the means and methods of the work.
  • Common-law indemnity remains control-focused: Without proof of non-negligence and lack of supervision/control over work methods, common-law indemnity will rarely be resolved in the claimant’s favor on summary judgment.
  • Insurance-procurement claims are evidence-driven: Parties seeking summary judgment for failure to procure insurance must submit concrete proof of noncompliance (e.g., missing endorsement, broker testimony/affidavit, carrier denial, policy terms showing absence of AI status), not just the contract requirement.
  • Practical consequence in construction litigation: The decision increases the likelihood that contractual indemnification claims survive longer into litigation (especially against employers/subs) when the movant cannot negate “arising out of,” while simultaneously making it harder for upstream parties to obtain early, affirmative indemnity awards without a developed record on supervision and fault.

4. Complex Concepts Simplified

Summary judgment
A pretrial ruling granted only when there is no “triable issue of fact.” The moving party must first make a prima facie showing; only then does the burden shift to the opponent.
Contractual indemnification
A promise in a contract that one party will reimburse/defend another for certain losses. Whether it applies depends on the clause’s trigger language (here, the familiar “arising out of” concept).
“Arising out of” (in indemnity/insurance clauses)
Generally means the injury has a sufficient connection to the indemnitor’s work or operations. It does not necessarily require proof the indemnitor was negligent; it focuses on the relationship between the accident and the covered work.
General Obligations Law § 5-322.1
A New York statute limiting construction indemnity: an upstream party (like an owner or contractor) cannot be indemnified for its own negligence. Thus, to win contractual indemnity on summary judgment, the upstream party must show it was free from negligence.
Common-law indemnification
An equitable doctrine shifting loss to the party actually at fault or responsible for the work. The party seeking it must show it was not negligent and that the indemnitor was negligent or controlled the injury-producing work.
Additional insured / failure to procure insurance
Construction contracts often require a subcontractor to obtain insurance naming the upstream party as an “additional insured.” A breach claim requires proof both that the contract demanded it and that the insurance was not actually obtained.
Supervisory control / “means and methods”
The legal idea that having authority to direct how work is performed can create responsibility (and potential negligence). If such authority is unresolved, upstream parties may be unable to prove they are “free from negligence.”

5. Conclusion

Jamieson v Noble Constr. Group, LLC reinforces a set of practical, motion-determinative rules in New York construction-accident litigation:

  • A party seeking to dismiss contractual indemnification on summary judgment must make a prima facie showing that the clause is not triggered or otherwise inapplicable; Lippolis failed that showing, so dismissal was reversed.
  • A party seeking to obtain contractual indemnification under General Obligations Law § 5-322.1 must prove it is free from negligence; the defendants could not do so due to unresolved issues about supervisory authority/control.
  • Common-law indemnification and insurance-procurement claims likewise require targeted proof—particularly on control/fault allocation and on actual noncompliance with insurance requirements.

The decision’s broader significance lies in its disciplined separation of (i) the evidentiary burdens for dismissing indemnity claims versus (ii) the stricter showings required to win indemnity affirmatively—an approach likely to shape how parties build records and structure summary-judgment motions in future construction site cases.