Debra Boccardi and Patrick Kenny Obtain Reversal on Appeal Securing Unconditional Contractual Indemnification

Debra Boccardi and Patrick Kenny successfully obtained a reversal on appeal in the Appellate Division, First Department, on behalf of GVK’s owner and general contractor clients.

Patrick Kenny handled the defense during the litigation. The third-party defendant-employer’s primary and first-layer excess carriers had agreed to indemnify GVK’s clients but the excess carriers did not agree. As such, in order to obtain as much coverage as possible for his clients, Patrick needed to establish the clients were free of negligence in order to obtain unconditional contractual indemnification from the third-party defendant-employer based in contract.

Throughout discovery and summary judgment phases, Patrick argued that GVK’s clients were free from negligence and that the undisputed facts triggered the contractual indemnification provision, entitling them to unconditional contractual indemnification from the plaintiff’s employer. The trial court disagreed and awarded only conditional contractual indemnification despite the fact that GVK’s clients provided no direction, supervision and control over the plaintiff’s injury producing work, provided no materials or equipment, did not create the alleged condition in the ladder plaintiff was on at the time of the accident and did not have notice of it.

Debra Boccardi perfected the appeal for GVK’s clients. Her appellate brief persuaded the First Department to reverse the trial court as a matter of law and award unconditional contractual indemnification from the third-party defendant employer to GVK’s owner and general contractor clients. The First Department also rejected plaintiff’s request—raised for the first time on appeal—to search the record and grant summary judgment under Labor Law § 240(1), a claim plaintiff lost at the trial level during the summary judgment phase and did not directly appeal.