The New York State Department of Transportation (NYSDOT), represented by Goldberg Segalla partner Paul D. McCormick, secured on appeal a summary judgment and conditional order of indemnity in a dispute stemming from a New York State Labor Law action.

In the underlying action, an employee of a painting company contracting with NYSDOT alleged that he fell from a ladder and sustained serious injuries while painting bridges and overpasses along an interstate highway. He brought suit against multiple defendants, including our client. NYSDOT had entered into a contract with the painting company that incorporated defense and indemnity provisions, including a requirement that the contractor procure an owners and contractors protective liability (OCPL) insurance policy with NYSDOT as the named insured. Crucially, it also specified that the contractor’s obligation to defend and indemnify would not “be deemed limited or discharged by the enumeration or procurement of any insurance for liability for damages imposed by law” upon NYSDOT.

Paul had to commence our client’s indemnity action against the contractor in Cattaraugus County, because he was precluded from impleading the defendant into the Labor Law action he is defending in the New York Court of Claims. The New York State Supreme Court granted summary judgment, and Paul obtained a conditional order of indemnity, both contractual and common law, against the employer of the injured claimant.

The contractor appealed the order to New York State Supreme Court, Appellate Division, Fourth Department. The Fourth Department affirmed the trial court’s order and rejected the defendant’s contention that it had fulfilled its obligation to indemnify NYSDOT simply by procuring an OCPL policy.