Limiting Contractual Indemnification to Injuries Arising from “Performance of the Work”:
A Commentary on Dibrino v. Rockefeller Center North, Inc., 2025 NY Slip Op 07077

I. Introduction

In Dibrino v. Rockefeller Center North, Inc., the New York Court of Appeals addresses two interrelated questions central to modern construction litigation:

How far does a subcontractor’s contractual duty to indemnify an owner and general contractor extend when an employee of another subcontractor is injured using the subcontractor’s equipment?
When, if ever, does a subcontractor that leaves its tools or equipment accessible on a multi-employer construction site owe a common-law duty of care to employees of other trades under the “force or instrument of harm” exception in Espinal v Melville Snow Contractors?

Chief Judge Wilson, writing for the majority, holds that:

The indemnity provisions in the master subcontract between JRM (the general contractor) and DAL Electrical Corporation (the electrical subcontractor) do not require DAL to indemnify JRM or the owner (Rockefeller Center North) for injuries suffered by a carpenter (Dominick Dibrino) who used DAL’s allegedly defective ladder without authorization.
DAL owed no tort duty to Dibrino under the Espinal “force or instrument of harm” doctrine; its leaving a ladder accessible, even if defective, is at most a “mere negligent omission” rather than the “commission of a wrong” that creates a duty to a non-contracting third party.

Judge Rivera, joined by Judge Troutman, dissents. She reads the “MLB Pass-through” indemnity addendum (Article 12.2.1) as a “breathtakingly broad” clause that deliberately shifts virtually all risks “in any way related, directly or indirectly” to DAL’s “acts or omissions” under the agreement – including the accident here – onto DAL, even where the injury is suffered by another subcontractor’s employee.

The decision is an important development in two ways:

It narrows the practical reach of expansive contractual indemnity language in multi-layered construction contracts by tying indemnity obligations back to the defined “Work” and overall contractual structure.
It reinforces, and arguably sharpens, the restrictive treatment of the Espinal “force or instrument of harm” exception, confirming that foreseeability and incremental increases in risk do not by themselves create a duty to third parties.

II. Factual and Procedural Background

A. The Project and the Parties

Owner: Rockefeller Center North, Inc. (“Rockefeller”).
General Contractor: JRM Construction Management LLC (“JRM”).
Electrical Subcontractor: DAL Electrical Corporation (“DAL”).
Carpentry / Drywall Subcontractor: Jacobson & Co., Inc. (“Jacobson”), nonparty employer of plaintiff Dominick Dibrino.

The accident occurred during a renovation of Major League Baseball’s headquarters at 1271 Sixth Avenue in Manhattan. Each subcontractor (DAL and Jacobson) was separately retained by JRM under distinct subcontracts and was required to provide its own tools and equipment.

B. The Accident

On the day of the incident (June 2019), Dibrino, a Jacobson carpenter, used Jacobson’s own A-frame ladder and a rolling Baker scaffold to mark out soffit lines in a fifth-floor pantry. After completing this task, he moved the Jacobson equipment to another floor for afternoon work and went to lunch.

During lunch, a Jacobson coworker asked him to re-check his earlier measurements. Returning to the fifth-floor pantry, Dibrino chose not to bring back the Jacobson ladder or scaffold. Instead, he used a different six-foot A-frame ladder already set up in the pantry. He:

knew the ladder was not Jacobson’s,
did not ask permission from anyone to use it, and
did not inquire who owned it.

That ladder belonged to DAL. It had:

a bent non-stepping rung, and
blue tape on the cap and top two rungs – consistent with DAL’s practice of taping ladders it judged defective and marking them “do not use.”

For about 15 minutes, Dibrino ascended and descended the ladder without incident. As he stood on the second or third rung taking overhead measurements, the ladder wobbled. His foot became caught in a rung and he fell, landing on a pair of snips in his toolbelt, which penetrated his abdomen and caused serious injuries.

C. Claims and Cross-Claims

The plaintiffs (Dibrino and his spouse) sued:

Rockefeller (owner),
JRM (general contractor),
DAL (electrical subcontractor), and
another general contractor, Turner Construction (later discontinued).

They alleged:

Labor Law §§ 200, 240(1), and 241(6) violations against Rockefeller, JRM, and DAL, and
common-law negligence against DAL based on leaving an allegedly defective ladder in the pantry.

Rockefeller and JRM asserted cross-claims against DAL for:

breach of contract,
contractual indemnification,
common-law indemnification, and
contribution.

D. Supreme Court

Supreme Court, Bronx County:

Granted plaintiffs partial summary judgment on their Labor Law § 240(1) claim against Rockefeller and JRM.
Denied DAL’s motion to dismiss plaintiffs’ Labor Law § 200 and common-law negligence claims and all cross-claims.
Granted JRM and Rockefeller summary judgment on their contractual indemnification claim against DAL, reasoning that the accident “arose out of” DAL’s work because Dibrino was using DAL’s ladder.

E. Appellate Division

The First Department, in a split decision, reversed on indemnity and as to DAL’s liability:

It denied JRM and Rockefeller’s motion for summary judgment on contractual indemnity.
It granted DAL’s motion for summary judgment dismissing:
- the remaining claims against it in the complaint, and
- all cross-claims (contractual and common-law) by JRM and Rockefeller.
Two Justices dissented, favoring a broad reading of the indemnity addendum.

The Appellate Division granted leave to appeal and certified whether its order was properly made. While the appeal was pending, JRM and Rockefeller settled with the plaintiffs. The only live issue before the Court of Appeals was their cross-claim against DAL for contractual indemnification.

III. Summary of the Court of Appeals’ Decision

A. Holding

The Court of Appeals:

Affirmed the Appellate Division’s order insofar as appealed from.
Answered the certified question in the affirmative.

Substantively, the Court held:

No contractual indemnity: None of the three indemnification provisions (Articles 6.10.6, 10.1, or 12.2.1) in the JRM–DAL subcontract required DAL to indemnify JRM or Rockefeller for Dibrino’s injuries because:
- all must be read as limited to claims arising from DAL’s “performance of the Work,” as that term is defined in the subcontract; and
- Dibrino’s unauthorized use of DAL’s unattended ladder to check Jacobson’s measurements did not arise from DAL’s performance of its electrical work.
No tort duty: DAL did not owe a duty of care to Dibrino under the Espinal “force or instrument of harm” exception.
- Leaving a defective ladder unattended is, at most, a “mere negligent omission,” not the “commission of a wrong” required by Moch to impose a duty to a third party.
- Foreseeability that another worker might use the ladder does not create a duty; it goes only to the scope of an already existing duty.
- The Court reinforced that it has yet to find a case that actually satisfies the “force or instrument of harm” exception.

B. The Dissent

Judge Rivera’s dissent would:

Interpret Article 12.2.1 of the addendum (“MLB Pass-through provisions”) as an independent and broader indemnity undertaking.
Hold that DAL must indemnify Rockefeller and JRM because:
- Article 12.2.1 requires DAL to indemnify for claims “in any way related, directly or indirectly” to any acts or omissions under the agreement, “including, without limitation” injuries to any subcontractor’s employees.
- Leaving a DAL ladder open and unattended on the work floor – in circumstances where DAL knew non-employees commonly used such ladders – is plainly an “act or omission” under the agreement, at least indirectly related to DAL’s performance.
Conclude that Supreme Court correctly granted summary judgment to Rockefeller and JRM on contractual indemnity.
Find it unnecessary to reach the Espinal duty issue.

IV. Structure and Interpretation of the Subcontract

A. The Three Indemnity Provisions

1. Article 6.10.6 (Master Subcontract – Safety-Related Claims)

DAL agreed to indemnify JRM and Rockefeller for:

“all Claims, damages, and the payment of all fines … as a result of Subcontractor’s performance of the Work related in any way to safety, health, fire or environmental violations or deficiencies in the planning or execution of the Work for which Subcontractor is responsible under this Agreement and/or Purchase Order….” (emphasis added)

2. Article 10.1 (Master Subcontract – General Indemnity)

DAL agreed to indemnify for:

“claims, damages, losses, liabilities, fines, payments and expenses … arising out of and in connection with … injuries … or damage to property … resulting from performance of the Work,”

and, further, to indemnify:

“to the extent caused or alleged to be caused … by a violation of any law … or by any negligent or willful act or omission, or any claim of strict liability, arising out of Work by the Subcontractor or anyone directly or indirectly employed by Subcontractor….” (emphasis added)

3. Article 12.2.1 (Addendum – MLB Pass-Through Provisions)

The Addendum states it shall “amend, add to, supplement, modify, and/or replace” provisions of the master subcontract, and that in the event of conflict, the Addendum “shall take precedence.”

Article 12.2.1 then provides, in relevant part, that DAL:

“hereby agrees to indemnify [the indemnitees] against … any and all liabilities, claims, suits, demands, damages, judgments, costs, fines, penalties, interest, and expenses … arising out of, resulting from or in any way related, directly or indirectly, to the following:

(a) any acts or omissions, breach of the terms, conditions, representations, warranties, or obligations under this Agreement or failure to comply with the applicable Laws or the Contract Documents … including, without limitation, (i) injuries to … any Subcontractor’s employees….” (emphasis added)

Other subsections of 12.2.1 (b)–(g) address workers’ compensation, wage and benefit obligations, liens, taxes, union contributions, and:

“(g) the negligence or willful misconduct or negligent acts or omissions of Subcontractor, or their agents, contractors, subcontractors, servants or employees.”

B. The Defined “Work” and the Majority’s Nexus Requirement

Central to the majority’s analysis is the contract’s definition of “Work” and how that definition governs the reach of indemnity:

Article 2.2.3 defines “Work” as “the scope of work to be performed on a Project by Subcontractor in accordance with the terms of this Agreement and the Contract Documents including changes thereto.”
Articles 3–6 then flesh out that “Work”: scope, schedule, purchase orders, DAL’s obligations, safety, cleanup, etc.

From this, the Court extracts a basic interpretive rule: the indemnity provisions are anchored to a claim’s relationship to DAL’s performance of its defined Work. A contractual indemnity obligation arises only where there is at least some meaningful nexus between:

the injury or claim, and
DAL’s performance of the electrical work JRM hired it to do, as governed by the contract documents.

The majority explicitly rejects a reading under which DAL must indemnify for any event that can be traced to DAL through any causal chain, however remote. The Court illustrates this point with a hypothetical: even if DAL had thrown the defective ladder into a dumpster and Dibrino later retrieved and used it, JRM’s reading would still trigger indemnity. The Court labels such a reading “implausibly broad.”

V. Precedents and Their Influence on the Decision

A. Contract Interpretation and Indemnity Clauses

1. Greenfield v Philles Records & Slamow v Del Col

The Court invokes Greenfield v Philles Records, 98 NY2d 562 (2002), for the bedrock rule:

Contracts are construed according to the parties’ intent.
The best evidence of that intent is “what they say in their writing.”
When a contract is complete, clear, and unambiguous on its face, it must be enforced according to its plain terms.

The Court also cites Slamow v Del Col, 79 NY2d 1016 (1992), reiterating that the written instrument is the primary evidence of intent.

2. MAK Tech. Holdings Inc. v Anyvision Interactive Tech. Ltd.

MAK Tech., 42 NY3d 570 (2024), is cited for the proposition that whether a contract is ambiguous is a question of law. This frames the Court’s role: it must determine, as a matter of law, whether the indemnity provisions admit the sweeping interpretation urged by Rockefeller and JRM.

3. Hooper Assoc. v AGS Computers

From Hooper Assoc. v AGS Computers, 74 NY2d 487 (1989), the Court borrows the principle that an indemnification provision:

“must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed.”

The majority uses this canon to reject readings that would transform DAL into an insurer of virtually all jobsite risk merely because its equipment was physically present.

4. Ronnen v Ajax Electric Motor Corp. and Lawyers’ Fund v Bank Leumi

The majority relies on anti-surplusage cases:

Ronnen v Ajax Electric Motor Corp., 88 NY2d 582 (1996), and
Lawyers’ Fund for Client Protection v Bank Leumi Trust Co., 94 NY2d 398 (2000)

for the settled rule that contracts should not be construed so as to render any provision “meaningless or without force or effect.” This supports the Court’s insistence that Article 12.2.1 cannot be read so broadly that Articles 6.10.6 and 10.1 become dead letters.

B. Insurance Cases and “Arising Out Of” – Worth Construction and Killian

Rockefeller and JRM relied on insurance coverage cases, particularly Worth Constr. Co. Inc. v Admiral Ins. Co., 10 NY3d 411 (2008), where the Court interpreted “arising out of” to mean “originating from, incident to, or having connection with,” requiring only some causal relationship between the injury and the covered risk.

The majority distinguishes these cases on two grounds:

Contextual difference: In insurance, there is a longstanding rule of construing ambiguities against the insurer and in favor of coverage (citing Killian v Metropolitan Life Ins. Co., 251 NY 44 (1929)). No such pro-coverage policy applies to indemnity provisions in commercial construction contracts.
Contractual limitation: Even where the phrase “arising out of” appears, in this subcontract it is explicitly tied to “performance of the Work.” Thus the insurance analogy is incomplete: the contractual definition of “Work” cabins what would otherwise be a broad causation phrase.

Thus, Worth does not justify the near-limitless indemnity Rockefeller and JRM seek.

C. The Espinal Line and the “Instrument of Harm” Exception

The second major axis of precedent involves when a contractor’s performance of a contract creates a duty to nonparties.

1. Espinal v Melville Snow Contractors

In Espinal v Melville Snow Contractors, 98 NY2d 136 (2002), the Court set out three situations where a contractor’s obligations under a contract may give rise to a tort duty to a third party:

Launching a “force or instrument of harm” (the “affirmative creation or exacerbation” of a dangerous condition).
A third party’s detrimental reliance on the contractor’s continued performance.
Complete displacement of another party’s duty to maintain the premises safely.

Only the first – “launching a force or instrument of harm” – is at issue here. JRM and Rockefeller argue that DAL, by leaving a defective ladder accessible, launched an instrument of harm.

2. Moch and Church – Commission vs Omission

The phrase “force or instrument of harm” originates in H.R. Moch Co. v Rensselaer Water Co., 247 NY 160 (1928) (Cardozo, Ch. J.). There, a water company’s failure to provide adequate water pressure allowed a fire to spread and destroy the plaintiff’s warehouse. The Court declined to impose a duty to the warehouse owner because:

the water company’s conduct was a “mere negligent omission,”
not an affirmative “commission of a wrong,” and
liability to a broad public class would be “unduly and indeed indefinitely extended.”

In Church v Callanan Indus., 99 NY2d 104 (2002), the Court similarly refused to impose a duty on a company contracted to install a highway guardrail to a passenger injured when a car left the roadway where the guardrail had not (yet) been installed. Again, failure to perform contractual work did not transform into a duty to the world at large.

3. Fung, Stiver, and the Narrow Reach of the Exception

The Court notes that in cases like Fung v Japan Airlines Co., Ltd., 9 NY3d 351 (2007), and Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 (2007), it likewise held that contractors did not owe duties to non-contracting plaintiffs under Espinal. Collectively, the Court points out, it has yet to find a case where the “force or instrument of harm” exception has actually been satisfied.

4. Palka, Glanzer, MacPherson and Reasonable Expectations

The majority also references:

Palka v Servicemaster Mgt. Services Corp., 83 NY2d 579 (1994),
Glanzer v Shepard, 233 NY 236 (1922),
MacPherson v Buick Motor Co., 217 NY 382 (1916),
Fish v Waverly Elec. Light & Power Co., 189 NY 336 (1907), and
Hall v United Parcel Serv., 76 NY2d 27 (1990)

to emphasize that the existence and scope of duty depend on:

the nature of the defendant’s conduct, and
the reasonable expectations of persons in the injured’s position.

In Palka, for example, a maintenance company’s comprehensive assumption of hospital safety duties justified finding a duty to a nurse who was injured; in MacPherson, the nature of a defective automobile created a direct duty to foreseeable users. By contrast, in Dibrino, employees of one subcontractor cannot “reasonably rely” on the safety of another subcontractor’s tools, especially where they are instructed to use only their own employer’s equipment.

VI. The Court’s Legal Reasoning

A. Why Articles 6.10.6 and 10.1 Do Not Apply

For the majority, Articles 6.10.6 and 10.1 share a critical structural feature: they explicitly link indemnity to claims “resulting from” or “arising out of” performance of the Work. Because “Work” is a defined and cabined contractual term, indemnity is limited to:

claims causally related to DAL’s actual performance of the electrical work it was hired to perform, including safety measures, execution, etc.

On the facts, however:

Dibrino was performing Jacobson’s carpentry work (checking soffit measurements), not DAL’s work.
He chose not to use his own employer’s scaffold and ladder, which were available and had been used earlier the same day for the same task.
He intentionally used a ladder he knew did not belong to his employer, without permission, in violation of a jobsite rule against using others’ equipment.

The Court concludes that this pattern of conduct is too attenuated from DAL’s performance of its defined electrical work to reasonably be said to “arise from” or be a “result of” such performance. The fact that DAL had, at some point, performed its work with this ladder or failed to remove it from the area is not enough to meet the contract’s nexus requirement.

B. Why Article 12.2.1 Does Not “Swallow” the Other Provisions

Article 12.2.1 appears, at first glance, vastly broader. It covers claims “in any way related, directly or indirectly” to “any acts or omissions, breach … or obligations under this Agreement,” including injuries to any subcontractor’s employees. The dissent reads this as an expansive, stand-alone promise.

The majority, however, insists Article 12.2.1 must be harmonized with the rest of the contract:

Reference to “this Agreement” and “Contract Documents”:
- The clause limits itself to acts or omissions “under this Agreement” and failures to comply with “the Contract Documents.”
- “Agreement” is defined as the entire master subcontract and its exhibits and addenda; “Contract Documents” tie back to the project scope and DAL’s contracted Work.
- Thus, the “acts or omissions” captured are those that occur in the course of carrying out DAL’s contractual obligations – not any act by DAL personnel on the jobsite.
Parallel Work-linked language in nearby provisions:
- Subsection (c) refers to obligations arising from DAL’s “employment relationship” with its employees – another contractual duty tied to DAL’s workforce.
- Subsection (e) speaks of taxes “by reason of the performance of the Work.”
- Subsection (f) covers union contributions for employees “engaged in the Work to be performed and furnished under this Agreement.”
This pattern suggests that “any acts or omissions … under this Agreement” is not meant to reach wholly extraneous DAL conduct, but acts/omissions connected to its contractual performance.
Anti-surplusage and structural coherence:
- If Article 12.2.1 were interpreted as the dissent proposes, Articles 6.10.6 and 10.1 would be essentially redundant – no scenario could be imagined where they would apply but 12.2.1 would not.
- The majority credits the oral argument exchange in which counsel for JRM and Rockefeller could not articulate any circumstances in which 6.10.6 or 10.1 would apply but 12.2.1 would not; nor could they explain the distinct role of subsection (g) if 12.2.1(a) already swept in all DAL negligence.

On that basis, the Court construes Article 12.2.1 as:

expanding indemnity to cover broader categories of claims linked to contractual performance, but
not extending indemnity to every conceivable harm in which DAL’s presence at the site can be traced as a causal factor.

C. Rejecting a Foreseeability-Based Definition of “Under this Agreement”

The dissent proposes that an act or omission occurs “under this Agreement” whenever it is a foreseeable incident of DAL’s presence and operations at the site (e.g., foreseeable that unattended ladders will be used by other trades).

The majority criticizes this as injecting tort-law foreseeability into a question of contract interpretation:

“Under this Agreement” in their view refers to work actually performed pursuant to the contract, not to everything that is foreseeably connected to DAL being on site.
They consider the dissent’s “foreseeability” test effectively unbounded: if the risk that someone could improperly use DAL’s tools is foreseeable, why not also the risk that someone could steal them from storage? The dissent’s attempt to draw a line at theft is, for the majority, not convincingly rooted in the contract language.

D. No “Force or Instrument of Harm” Duty Under Espinal

Rockefeller and JRM, invoking Article 12.2.1(g), argued that even if DAL had no contractual obligation to indemnify for this accident via the “Work” nexus, DAL still had to indemnify them for its “negligent acts or omissions” because it owed Dibrino a tort duty. They relied on Espinal and Church for the idea that creating or exacerbating a hazardous condition (“making a situation less safe than it would have otherwise been”) can trigger a duty.

The majority rejects this for several reasons:

No contract between DAL and Dibrino/Jacobson: The baseline rule is that “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal, Eaves Brooks).
Exception is narrow and historically never applied: In Moch, Espinal, Church, Fung, and Stiver, the Court declined to find a duty in circumstances arguably more compelling for the plaintiff. The “force or instrument of harm” exception has, to date, never been successfully invoked in a Court of Appeals decision.
“Mere negligent omission” vs “commission of a wrong”:
- Borrowing Moch’s language, the Court views leaving an unattended ladder – even a defective one – as closer to “mere negligent omission” than an active “commission of a wrong.”
- The key is not how dangerous the situation was in abstract, but what kind of conduct created the relationship between DAL and the plaintiff.
Reasonable expectations and jobsite norms:
- DAL and Jacobson were independent subcontractors with separate scopes and equipment.
- The record is “unequivocal” that subcontractors were forbidden from using others’ tools, even if in practice “everybody does.”
- Because Jacobson provided adequate equipment and instructed its employees to use only that equipment, employees cannot “reasonably rely” on the safety of others’ ladders.
- Recognizing a duty in this context would effectively make each subcontractor a guarantor of the safety of its equipment as used by others, contrary to the project’s risk allocation.
Foreseeability is not duty:
- The majority emphasizes that foreseeability pertains to the scope of an existing duty, not to whether a duty exists in the first place (citing NYC Asbestos Litigation, 27 NY3d 765, 788 (2016)).
- Adopting foreseeability as the test for duty would “swallow the default rule of no duty to third parties,” undermining Moch, Espinal, and Church.
- In all those cases, increased risk was plainly foreseeable; yet no duty was found.

Given this, DAL owed no cognizable duty to Dibrino in tort. Without a duty and breach to ground negligence, there is nothing for Article 12.2.1(g)’s “negligent acts or omissions” language to attach to, and thus no contractual indemnity flows from that subsection either.

VII. The Dissent’s Competing Vision

A. Text-First Reading of Article 12.2.1

Judge Rivera’s dissent takes a strongly textual approach to Article 12.2.1:

DAL agreed to indemnify for all damages “in any way related, directly or indirectly” to “any acts or omissions” under the agreement.
The provision explicitly states that this includes, “without limitation,” injuries to “any Subcontractor’s employees.”

Given that:

DAL’s employee used and left a DAL ladder open and unattended on the active work floor,
DAL knew, and its witnesses admitted, that other trades routinely used unattended ladders despite rules to the contrary, and
DAL had a safety policy aimed precisely at preventing non-employees from using its ladders, but did not fully enforce it,

the dissent concludes the chain from DAL’s act/omission to Dibrino’s injury is plainly “indirectly related” to DAL’s performance under the contract.

B. Addendum’s Express Supremacy and Supplementation

The dissent places heavy weight on the Addendum’s prefatory language:

It states the Addendum “shall amend, add to, supplement, modify, and/or replace” provisions of the master subcontract.
In any conflict between the Addendum and the subcontract, the Addendum “shall take precedence.”

From this, the dissent reasons:

Where Article 12.2.1 is broader than Articles 6.10.6 and 10.1, it is meant to supplement their narrower indemnity obligations.
To the extent there is true conflict, it replaces them.
This broad pass-through indemnity was precisely what MLB’s upstream contracts required and what DAL agreed to undertake.

C. “Under this Agreement” as a Limiting Principle

The dissent disagrees with the majority’s suggestion that her reading is limitless. She offers a limiting example:

If DAL properly closed and locked away its ladder, and a non-employee broke into storage to steal and use it, injuries from that theft would not be indemnifiable because such conduct is not reasonably part of DAL’s work “under this Agreement.”

By contrast, leaving a ladder open and unattended during working hours on the active floor was an “anticipated and commonplace” part of the work environment that the parties could be said to have contemplated when drafting Article 12.2.1.

D. Broad Indemnity Is Enforceable Under NY Law

The dissent invokes core indemnity cases such as:

Margolin v New York Life Ins. Co., 32 NY2d 149 (1973);
Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774 (1987); and
Bradley v Earl B. Feiden, Inc., 8 NY3d 265 (2007)

for the propositions that:

Broad indemnification agreements are enforceable where the intent to indemnify is clear, even covering the indemnitee’s own negligence.
Courts should give effect to parties’ risk allocation when expressed in clear contractual language.

In her view, Article 12.2.1 is precisely such a broad, bargained-for allocation of risk, and the majority’s reading fails to “give effect to the intention of the parties as expressed in the unequivocal language employed.”

VIII. Complex Concepts Simplified

A. What Is Contractual Indemnification?

Contractual indemnification is an agreement where one party (indemnitor) promises to reimburse another (indemnitee) for certain losses or claims. In construction:

Owners and general contractors commonly require subcontractors to indemnify them for claims “arising out of” the subcontractor’s work.
These clauses can be narrow (limited to the subcontractor’s own negligence within its scope of work) or broad (covering virtually any jobsite injury connected to the subcontractor or even the indemnitee’s negligence).

Courts:

enforce such clauses when the parties’ intent is clear, but
strictly construe them and will not infer a duty beyond what the language and structure support.

B. “Arising Out Of,” “Resulting From,” and “Related To”

These common contract phrases describe the required connection between:

the event or injury, and
the subject of the indemnity (e.g., the subcontractor’s work or acts).

In insurance law, “arising out of” can be very broad – almost any causal connection may suffice, and ambiguities are resolved against the insurer. But in construction indemnity between sophisticated commercial parties:

there is no default bias in favor of broader coverage, and
the meaning of these phrases is shaped by the defined terms (“Work”) and the contract read as a whole.

C. What Does “Under this Agreement” Mean?

In Article 12.2.1, DAL agreed to indemnify for acts or omissions “under this Agreement.” The majority reads this as:

acts or omissions in carrying out DAL’s contractual obligations – its defined Work, safety duties, documentation, and so on – not literally any act by a DAL employee on site.

The dissent would extend it to:

acts and omissions that are foreseeable, common incidents of DAL’s on-site operations, such as leaving ladders in work areas where other trades might use them.

D. The Espinal “Force or Instrument of Harm” Doctrine

Under Espinal, a contractor generally owes no duty to nonparties to its contract. One narrow exception exists where:

the contractor’s actions “launch a force or instrument of harm” – meaning it affirmatively creates or significantly exacerbates a dangerous condition.

But the Court:

has repeatedly declined to find this standard satisfied (Moch, Espinal, Church, Fung, Stiver), and
emphasizes the difference between:
- failing to make things safer (omissions), and
- actively making them more dangerous (commissions).

In Dibrino, leaving an allegedly defective ladder in place was held to be an omission, not an active “commission of a wrong” sufficient to create a duty to another subcontractor’s employee.

E. Foreseeability vs Duty

Foreseeability answers: “Once a duty exists, how far does it extend? What risks does it encompass?” It does not answer: “Does a duty exist at all?”

The majority’s message is:

Even if it is foreseeable that leaving a ladder unattended might lead others to use it and get hurt, that fact alone does not mean DAL owed a legal duty to those others.
Otherwise, every contractor on a site could be sued by any injured worker whenever its equipment was even tangentially involved.

IX. Impact and Future Implications

A. Implications for Drafting Construction Contracts

Dibrino sends a clear signal to drafters of master subcontracts and pass-through addenda:

Defined terms matter: If indemnity is tied to “performance of the Work,” “Work” will likely be read as the subcontract’s defined scope, not as “anything the subcontractor does on site.”
Internal consistency is critical: Courts will work hard to harmonize master agreements and addenda rather than allow broad addendum language to make earlier clauses superfluous – especially when both are part of a single integrated agreement.
If truly limitless indemnity is intended, it must be unmistakable: The Court shows reluctance to treat general language like “in any way related, directly or indirectly” as obliterating all nexus to the subcontractor’s defined Work unless the contract unmistakably says so.

Practically, owners and GCs seeking truly expansive downstream indemnity may respond by:

Using indemnity forms that explicitly state that indemnity covers any claim where the subcontractor’s equipment, employees, or presence at the site is even tangentially involved, regardless of whether the subcontractor was performing its own work at the time.
Clarifying that addenda are intended to be stand-alone indemnity grants not limited by the definition of “Work,” if that is indeed their intent.

B. Litigation Strategy in Multi-Subcontractor Injury Cases

For litigators, Dibrino will influence both plaintiffs and defendants:

Owners and GCs can no longer assume that “pass-through” or addendum indemnity language will automatically cover any accident involving a subcontractor’s equipment. They must:
- develop factual proof that the claim truly “arises out of” or “results from” performance of that subcontractor’s defined Work; and
- be prepared to show how any broader addendum was meant to supplement, not override, Work-based limitations.
Subcontractors can:
- invoke the Dibrino nexus requirement to resist indemnity where the injured worker:
  - belongs to a different trade,
  - was performing unrelated work, and
  - used the subcontractor’s tools contrary to jobsite rules or without permission.

C. Reaffirmation of Espinal’s Limits

The decision further entrenches a cautious approach to expanding duty under Espinal:

Contractors can take some comfort that mere presence of their tools or incomplete performance of their tasks will rarely, if ever, be enough to impose duties to noncontracting parties.
In multi-employer worksites, each subcontractor remains primarily responsible for its own employees, and workers cannot readily shift liability to other trades simply because they used others’ equipment.

At the same time, this framework:

may increase the relative importance of statutory Labor Law protections (especially § 240(1) and § 241(6)), which impose non-delegable duties on owners and GCs,
while limiting common-law negligence claims against other subcontractors under Espinal.

D. Insurance and Risk Allocation

Dibrino also draws a clear conceptual line between:

Insurance policies – where ambiguities in “arising out of” are construed in favor of coverage; and
Commercial indemnity agreements – where indemnity is strictly construed, and the Court will not import insurer-style pro-coverage rules.

Insurers and risk managers should expect:

greater scrutiny of how contractual indemnity risk is allocated in construction contracts; and
more frequent disputes over whether a particular accident truly “arises out of” a subcontractor’s Work versus being merely tangentially related to its tools or presence.

X. Conclusion: Key Takeaways

Dibrino v. Rockefeller Center North, Inc. stands as a significant clarification – and, in some respects, limitation – on both contractual indemnity obligations and third-party tort duties in New York construction law.

On the contractual side, the Court:

confirms that indemnity clauses tethered to “performance of the Work” are not triggered by every injury loosely connected to the subcontractor’s presence or equipment,
insists that even extremely broad addendum language must be harmonized with the master agreement and the defined scope of “Work,” and
declines to treat pass-through indemnity provisions as automatically overriding all Work-based limitations unless the contract clearly says so.

On the tort side, the Court:

reiterates the narrowness of Espinal’s “force or instrument of harm” exception,
emphasizes the difference between negligent omissions and affirmative wrongs, and
reaffirms that foreseeability, by itself, cannot establish a duty to third parties in the absence of a more direct relationship or assumption of responsibility.

The dissent, however, underscores that, in practice, sophisticated parties do sometimes intend to impose remarkably broad indemnity obligations downstream, and that courts must not narrow such obligations contrary to the text when the language is unequivocal. That tension – between strict construction and honoring aggressively broad risk transfer – will continue to shape New York’s law of indemnification.

Going forward, Dibrino will likely influence:

how construction contracts are drafted,
how courts read the interaction between master agreements and project-specific addenda,
how far subcontractors can be pushed to insure risks far beyond their own work, and
how workers and upstream parties seek to allocate responsibility when injuries arise from the informal, sometimes rule-defying realities of multi-trade construction sites.

Limiting Contractual Indemnification to Injuries Arising from “Performance of the Work”: A Commentary on Dibrino v. Rockefeller Center North, Inc., 2025 NY Slip Op 07077