In Martinez v. 342 Prop., LLC, 89 A.D.3d 468, 932 N.Y.S.2d 454 (1st Dept 2011). the contract between the parties provides that the site safety manager will only indemnify plaintiff for losses caused by the negligence of the site safety manager. Id.
Since the site safety manager lacked control over plaintiff's work, it was entitled to summary judgment dismissing the contractual indemnification claim. Id.
The court in Martinez rejected the plaintiff's argument that it was entitled to contractual indemnification because it relied on the site safety manager to correct unsafe work practices. Id. at 469-470.
The court noted that this argument was not supported by the contract between the parties which made no mention of plaintiff's intention to rely on the site safety manager to correct unsafe work practices. Id.
The court specifically noted that there was no basis to look outside of the contract to discern plaintiff's alleged intention to rely on the site safety manager to correct unsafe work practices as the contract unambiguously limited that site safety manager's indemnifiction duty to instances of negligence by the site safety supervisor. Id