Issue: Under New York law, when should a contractor’s request for indemnification be considered premature?
|Area of Law:||Litigation & Procedure, Personal Injury & Negligence|
|Keywords:||Contractor's request for indemnification; Premature; Damages based on vicarious liability|
|Cited Cases:||597 N.Y.S.2d 819; 533 N.Y.S.2d 80; 556 N.E.2d 430; 223 A.D.2d 830; 556 N.Y.S.2d 991; 672 N.Y.S.2d 56; 258 A.D.2d 630; 632 N.Y.S.2d 181; 234 A.D.2d 516; 664 N.Y.S.2d 799; 652 N.Y.S.2d 742; 562 N.Y.S.2d 718; 193 A.D.2d 926|
|Cited Statutes:||N.Y. Gen. Oblig. Law § 5-322.1|
There are several things to consider in deciding whether a contractor’s request for indemnification is premature. First, if the contractor has already been held liable for damages based on vicarious liability under New York labor laws, then there is an actual judgment in existence to be indemnified. See Cichon v. Brista Estates Assocs., 193 A.D.2d 926, 597 N.Y.S.2d 819 (3d Dep’t 1993).
Secondly, case law establishes that the subcontractor has the burden of demonstrating some degree of negligence on the part of the owner or contractor, before the subcontractor can raise the defense that the indemnity provision is void or unenforceable under N.Y. Gen. Oblig. Law § 5-322.1. Thus, in order to succeed in defending its case, a third-party defendant must prove some degree of negligence, however small, on the part of the contractor. Cases on point are:
· Connolly v. Brooklyn Union Gas Co., 168 A.D.2d 477, 562 N.Y.S.2d 718 (2d Dep’t 1990) (subcontractor has burden of proving owner or contractor negligence).