First published: Jul 2025
Sick, Sore, Lame & Disabled
TAKEAWAY For boards who govern in buildings where third-party workers are performing services, there are three major concerns: liability, indemnity, and insurance. The first concern, liability exposure, arises because under current law it is presumed that a building owner is liable when workers fall from heights during construction or maintenance work, regardless of who actively caused the accident. Indemnity, the second concern, is in the form of a written contract term often found in the agreement permitting contractors to do work or employ workers in the premises. These contractual terms require the contractor to protect the owner against claims brought by injured workers. Essentially, the contractor agrees in writing to step in and defend the owner, covering legal costs and damages when workers seek compensation under laws like Labor Law § 240(1). This indemnity provision serves as the owner's first line of defense against worker injury claims. The third concern, insurance, is more problematic. Contractors typically provide an ACORD 25 Certificate of Insurance (COI), typically issued by the contractor’s insurance broker. These certificates appear to confirm adequate coverage, but they contain a critical flaw: they don't reveal policy exclusions and endorsements that could allow the insurance company to deny coverage. Even worse, the COI itself states that it cannot modify the actual insurance policy terms. The lesson for boards is clear: before allowing any work to begin, boards must go beyond the standard certificate of insurance. Either the board’s attorney or insurance broker must examine the actual insurance policy provided by the contractor. This review should verify that no exclusions or endorsements exist that would allow the insurer to disclaim coverage when protection is needed most. Only through this thorough policy review can boards ensure they have the protection they believe they've secured through their contracts.
SARITA V. WEST RIV. APTS. INC.
WHAT HAPPENED In 2017, Patricio Sarita was renovating an apartment, owned by Panagiotis Moutsakis, at a Hamilton Heights co-op at 640 West 139th Street. While working, Sarita stood on an A-shaped ladder provided to him by Moutsakis, about four or five tall, installing a piece of wood. The ladder suddenly moved, and he fell. He did not know what caused the ladder to move. As a result of the fall Sarita claimed he was rendered “sick, sore, lame, and disabled, was caused to suffer great pain, and was internally and externally injured, will continue to endure great pain and suffering, and have sustained and will continue to sustain special damages.” Sarita sued, claiming that he has been damaged in a dollar amount exceeding the jurisdictional limits of all lower courts which would otherwise have jurisdiction, and he moved for summary judgment against the co-op, pursuant to New York Labor Law § 240(1), to establish liability for the injuries he sustained in his fall.
IN COURT New York's Labor Law Section 240(1) “imposes a nondelegable duty on owners to provide devices which shall be so constructed, placed and operated as to give proper protection to those individuals performing the work.” This absolute liability “is contingent upon the existence of a hazard contemplated in §240(1) and the failure to use, or the inadequacy of, a safety device contemplated therein.” Here the court found unrefuted evidence that a worker was injured when an unsecured ladder moved while he was using it, and the court granted the worker's motion for summary judgment against the co-op building owner. The co-op tried several defenses, but the court rejected them all. The court ruled that the lack of witnesses to the accident was irrelevant because the unstable ladder combined with the absence of other safety devices provided sufficient evidence of the owner's liability. The court also found it didn't matter whether the worker had brought his own ladder or whether there was any defect in the ladder itself, since established law holds that when a ladder collapses or malfunctions for no apparent reason, it creates a presumption that the ladder was inadequate to provide proper protection. Finally, the court determined that the worker was not the sole cause of his own accident. Based on these findings, the court ruled in favor of the injured worker and against the co-op building owner.
COUNSEL for Patricio Sarita JUDD KLEEGER, MICHAEL RUDICK Hecht, Kleeger & Damashek; COUNSEL for the co-op and NY Market Real Estate, Attorneys from Gallo Vitucci Klar; COUNSEL for West River Apartments ROBERT O’BRIEN Mahon, Mahon, Kerins & O’Brien; Justice Verna L. Saunders
