STATE OF NEW YORK

SUPREME COURT: CHAUTAUQUA COUNTY

_________________________________

MICHAEL A. KULPA AND BRENDA KULPA,


Plaintiffs,

vs Index #H-03487


GBP INDUSTRIES, INC. d/b/a

CHEMICAL PROCESS SYSTEMS/SERVICE,

Defendant-Third Party Plaintiff


vs


A.W.FARRELL & SON, INC.,


Third Party Defendant

_________________________________


 

MISERENDINO, CELNIKER, SEEGERT

& ESTOFF (Jonathan Estoff, Esq.

of Counsel) for Plaintiff


SAPERSTON & DAY, P.C.

for Defendant & Third Party Plaintiff


HURWITZ & FINE, P.C.

for Third Party Defendant



DECISION and ORDER


GERACE, J.


This is a Labor Law case based on principles of common law negligence and violations of the Labor Law for injuries Michael Kulpa sustained when he fell from the roof of a commercial building owned by Defendant GBP Industries "(GBP)".


Plaintiff's motion for summary judgment against GBP on issue of liability based on Labor Law 240.1 because of lack of safety devices is granted. There is no proof he was provided with appropriate safety equipment. There is proof in admissible form that defendants breached their nondelegatable duty, and, their breach was a proximate cause of the accident.


240.1 is construed strictly in favor of the injured employee. See ROCOVICH 78 NY2d 509; ROSS V. CURTISS PALMER, 81 NY2d 494; ADAMS V. CIMATO, et al, 617 NYS2d 251, and SEEMUELLER V. CO OF ERIE, 609 NYS2d 462, both 4th Dept cases.


When it brought the motion last January, defendant GBP sought common law indemnification only. One week before argument, defendant attempts to amend its motion to include a request for a conditional order of summary judgment based on contractual indemnification from Farrell.


There is a question of fact as to common law indemnification. Thin as the proof may be, there is some evidence GBP issued safety rules, inspected daily, retained some authority. Where there is an issue as to degree of control and supervision the owner has over the work site, summary judgment should be denied. See SCHIEVE V. IBA, 157 AD2d 924; BLAIR V. ROSEN MICHAELS, INC., 146 AD2d 863.


In almost sand size print, there appears to be an unsigned indemnification clause tucked away on the reverse side of the purchase order placing that responsibility on Farrell.


Defendant/Plaintiff has furnished three copies of the purchase order, the last somewhat clearer than the others, but none is legible without a magnifying glass. The fact counsel has furnished three copies in an attempt to provide the Court with a legible draft is proof that it is difficult to read.


Counsel cites several cases to establish that indemnification agreements like the one at issue here "are not disfavored in the law." It is doubtful that any of those cases dealt with an unsigned indemnification clause written on the backside of a purchase order in font as tiny as the print in this case.


While there may not be any specific statutory requirement as to the size of print in an indemnity clause, the print in this case is so tiny that it cannot support a motion for summary judgment.


The Court notes that recently the CPLR was amended to require minimum size print for a summons. This suggests that any indemnity clause should contain print no smaller than a summons. Appeals briefs must be in clear type of no less than elite in size. CPLR 5529.


If the original contract -the one furnished to Farrell- did not contain more legible or larger print than appears in the copies given to this Court, the question of indemnification will be left as a question of fact for the jury. Print 1/32nd to 1/16th of an inch in size is almost equivalent to no print at all.


Plaintiff's motion for summary judgment is granted.

Defendant/Third Party plaintiff's motions for common law and

contractual indemnity are denied, without prejudice. Defendant

may bring another motion if it can produce better and stronger

proof of either or both concepts of indemnity.


Dated: April 10, 1995

Mayville, New York



 

JOSEPH GERACE

Justice of Supreme Court