When Is Work ‘Work’? Dibrino, Calix and the Narrowing of Contractual Indemnity

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When Is Work ‘Work’? Dibrino, Calix and the Narrowing of Contractual Indemnity

New York’s Labor Law imposes substantial obligations on owners, general contractors and their agents to protect workers from harm on the jobsite. The significant liability exposure created by this framework has prompted owners and general contractors to include provisions in their contracts requiring subcontractors to hold harmless and indemnify the owner or general contractor for claims “arising out of” the subcontractor’s work. These indemnification provisions are among the principal risk-transfer mechanisms in New York Labor Law litigation, and their scope is frequently contested when an injured worker seeks recovery from an owner or general contractor who, in turn, brings a claim against the subcontractor.

For years, broadly worded “arising out of” indemnity provisions have been applied in situations in which a plaintiff’s injury bore some connection to the subcontractor’s contractually assumed work, even where the injured worker was not performing that subcontractor’s specific trade work at the moment of injury. That broad work-connection approach has been reflected in First Department decisions such as Ramirez v. Almah, LLC and Cackett v. Gladden Properties, LLC,[1] where injuries caused by conditions entirely unrelated to the proposed indemnitor’s scope of work were held to trigger indemnity based merely on the plaintiff’s employment relationship with the proposed indemnitor.

Two recent decisions have significantly tightened the inquiry into whether an injury “arose out of” a subcontractor’s work, demanding a closer nexus between the injury-producing condition and the proposed indemnitor’s contractual scope. In Dibrino v. Rockefeller Center North, Inc.,[2] the Court of Appeals held that a subcontractor’s mere ownership of a ladder left on site did not trigger its indemnity obligation where a worker from another trade used the ladder without authorization to perform work outside the subcontractor’s scope. Three months later, in Calix v. Union Theological Seminary in the City of New York,[3] the First Department dismissed a contractual indemnity claim against the plaintiff’s employer, holding that the indemnity provision was never triggered because the injury-producing condition was installed by a different contractor and had nothing to do with the proposed indemnitor’s work.

Together, Dibrino and Calix redefine the analytical framework for “arising out of the work” indemnity provisions in New York. Both decisions reject the premise that a generalized connection between the accident and the proposed indemnitor, whether through equipment ownership, employment of the injured worker or presence on site, is sufficient to trigger an indemnity obligation. In their place, these decisions establish that the “arising out of” language so commonly found in indemnity provisions is satisfied only where the injury-producing condition itself arose from the proposed indemnitor’s actual contractual work. Equipment ownership, employment of the injured worker and site presence no longer satisfy the “arising out of” threshold for purposes of contractual indemnity. As discussed below, this shift carries particular force in the First Department, which had applied a broader standard than the Second and Third Departments in the years preceding Dibrino.

**The Pre-Dibrino Baseline: Broad Work-Connection Analysis**

Prior to Dibrino, the First Department applied broadly worded “arising out of” indemnity clauses by looking to the general nature of the operation in which the injury occurred, not by closely parsing the precise injury-producing condition. The principle was illustrated by Weidtman v. Tremont Renaissance Housing Development Fund Co., Inc.[4] In Weidtman, a worker employed by NYC Crane was acting as a signal person during a hoisting operation involving Newburgh Iron, a fellow sub-subcontractor, during a concrete-plank hoisting operation when a plank struck him, causing him to trip and fall. The First Department granted conditional summary judgment on the contractual indemnification claims, holding that the broadly worded indemnity provisions were triggered because the accident occurred while NYC Crane and Newburgh Iron were performing their work as sub-subcontractors of Urban Precast. The Weidtman court explained that “[t]he focus of such a broadly worded clause is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained.”[5] This standard gave substantial room for contractual indemnity wherever an accident occurred within the orbit of a proposed indemnitor’s work operations, without requiring a close nexus between the specific injury-producing condition and the indemnitor’s contractual scope.

In Ramirez v. Almah, LLC, the First Department applied this broad approach to a factual scenario where the alleged injury-producing condition had no connection whatsoever to the proposed indemnitor’s scope of work.[6] The plaintiff in Ramirez was employed by Port Morris Tile & Marble as a truck driver and was injured when he was struck by a swinging door installed by Plumb Door, a separate subcontractor on the project. Despite the subject door having nothing to do with Port Morris’s tile work, the First Department held that the indemnity provision was triggered because the accident “arose from [plaintiff’s] performance of his work as an employee of Port Morris.” The court did not consider whether the injury-producing condition, the swinging door, was connected to Port Morris’s contractual scope of work, instead finding that it was enough that the plaintiff was performing his work for Port Morris at the time of the accident.

In Cackett v. Gladden Properties, LLC,[7] the First Department reached the same conclusion on nearly identical facts. There, a Port Morris Tile & Marble employee was injured when a heavy metal door stored by Interstate Drywall fell on him in an inadequately lit room. The hazard was entirely unrelated to Port Morris’s tile work, yet the court held that Port Morris’s indemnity obligation was triggered because the accident “arose from [plaintiff’s] performance of his work as an employee of Port Morris.” As in Ramirez, the employment relationship alone was sufficient to satisfy the “arising out of” language regardless of which contractor created the hazard.

Notably, the First Department’s broad approach was not shared by other departments during the same period. In Cantey v. City of New York,[8] decided the same year as Cackett, the Second Department dismissed a contractual indemnification claim against Eaton Electric under a provision triggered by claims “arising out of, or resulting from the performance of this contract or occurring in connection therewith.” Eaton was an electrical subcontractor whose employees had been working in the vicinity of the light fixture that injured the plaintiff, and the city speculated that Eaton’s workers may have struck the pipe to which the fixture was attached, causing it to loosen. Despite this plausible connection – same trade, physical proximity and a theory of causation – the Second Department held that “[t]he mere fact that Eaton’s employees were in the vicinity of the light fixture did not raise a triable issue of fact as to its liability for contractual indemnification, since there is no evidence that the accident was somehow caused by Eaton’s work.” The Second Department required proof of actual causation, not mere proximity or speculation.

The Third Department applied a similarly strict standard in Hannigan v. Staples, Inc.[9] There, the property manager sought contractual indemnification from Hayes Paving under a provision requiring Hayes Paving to indemnify for claims “arising out of or resulting from the performance of [s]ervices.” Hayes Paving held the de-icing contract covering the exact sidewalk where the plaintiff slipped and fell. Yet the Third Department reversed conditional summary judgment in favor of the property manager, holding that the record did not establish as a matter of law that the plaintiff’s fall “ar[ose] out of or result[ed] from the performance” of Hayes Paving’s de-icing obligations. Even where the proposed indemnitor had contractual responsibility for the precise area in which the accident occurred, the Third Department required affirmative proof that the injury resulted from the indemnitor’s actual performance of its contracted-for services.

Published Fourth Department case law is sparse as it relates to whether employment or site presence alone can trigger an “arising out of” indemnity provision when the hazard originated from a different contractor’s work. In cases where the Fourth Department granted contractual indemnification, the proposed indemnitor’s work had a direct causal connection to the injury-producing condition.[10]

The First Department’s approach in Weidtman, Ramirez and Cackett thus stood in tension with the standard applied by the Second and Third Departments during the same period. While the First Department did not require the injury-producing condition to be traced to the proposed indemnitor’s contractual scope – finding it sufficient that the plaintiff was the indemnitor’s employee performing work at the time of injury – the Second and Third Departments demanded proof of an actual causal connection between the injury and the proposed indemnitor’s specific work, rejecting proximity, speculation, and even contractual responsibility for the area as substitutes for that showing. The Fourth Department’s available authority, while not squarely confronting the issue, was consistent with the stricter approach. As detailed below, Dibrino and Calix resolve that tension by adopting the stricter approach, requiring the party seeking indemnity to trace the injury-producing condition to the proposed indemnitors’ actual contractual work.

Dibrino: Rejecting an Attenuated Equipment Nexus

The Court of Appeals’ 2025 decision in Dibrino rejected the broad work-connection approach that had formerly governed the First Department’s analysis of contractual indemnity. The Dibrino court held that “arising out of” language in an indemnity provision must be tied to the indemnitor’s contractual work, not merely to the general operation in which the injury occurred.

The plaintiff in Dibrino was a carpenter employed by Jacobson & Co. who was injured when he fell from a ladder owned by DAL Electrical Corporation, an electrical subcontractor on the same project. Dibrino was not performing DAL’s work at the time of his accident, and he was expressly forbidden from using other contractors’ equipment. The owner and construction manager, nonetheless, sought indemnity from DAL, arguing that because DAL owned the ladder and left it available on site, the accident “arose out of” DAL’s work under the subcontract’s broad indemnity provisions.

The Court of Appeals held that DAL’s ownership of the ladder did not bring the accident within the scope of its indemnity obligation. Examining the contract’s indemnity provisions, the court observed that each required the claim to result from or arise out of DAL’s performance of its contractually defined “Work,” a term the contract defined in detail. The court held that the contractual definition of DAL’s “work” determined the scope of DAL’s indemnity obligations and that “indemnifiable claims must arise from DAL’s performance of its work, not from acts that bear an attenuated relationship to its work.”[11] The court found that Dibrino’s unauthorized use of the ladder to perform another contractor’s work was “not reasonably construed as arising from performance of DAL’s work.”[12] The Dibrino court warned that if equipment ownership alone were sufficient to trigger indemnity, DAL’s obligation would be “triggered by any event that could be traced to DAL through any path, even, for example, had DAL disposed of the defective ladder in a dumpster and Dibrino retrieved it.”[13] The Dibrino court held that “[s]uch an expansive reading of these indemnity provisions is implausibly broad.”[14]

Under the pre-Dibrino baseline, the First Department looked to the “general nature of the operation” and treated the connection between the injury-producing instrumentality and the indemnitor’s project presence as sufficient, without requiring close analysis of whether the indemnitor’s actual work produced the hazard. Dibrino draws a sharper line, shifting the question away from whether the indemnitor’s equipment was present on the site, and instead focusing on whether the claim arose from the indemnitor’s actual performance of its defined contractual work. Equipment ownership alone, even coupled with an alleged failure to secure the equipment, does not satisfy that standard where the use was unauthorized, performed by another trade and unrelated to the indemnitor’s scope.

Calix: Rejecting Employment and Site Presence as Indemnity Triggers

In Calix, the First Department held that a plaintiff’s employment relationship with the proposed indemnitor does not establish that an accident arose out of the proposed indemnitor’s work where the alleged defective condition was unrelated to the proposed indemnitor’s contractual scope of work. The plaintiff in Calix, who slipped and fell while descending a staircase to retrieve a tool, was employed by Rosemount Interiors, Inc., a subcontractor on a renovation project. The alleged hazard was insufficiently taped masonite floor covering, installed not by Rosemount but by Consigli, the general contractor.

The defendants in Calix sought contractual indemnity from Rosemount under a provision triggered when claims “arise out of the acts or omissions of Rosemount.” Their theory was premised on the fact that the plaintiff was Rosemount’s employee, on site performing Rosemount’s work, and that the accident occurred while he was retrieving a tool in connection with that work. The First Department rejected the defendants’ theory and dismissed the indemnity claim, holding that “the indemnity provision was never triggered because plaintiff’s accident had nothing to do with the performance or non-performance of Rosemount’s work but rather was due to allegedly insufficiently taped masonite floor covering installed by Consigli.”[15] The court further stated that the “Plaintiff’s mere presence on the site is insufficient to trigger the indemnity provision.”[16] The plaintiff’s connection to Rosemount was substantial. He was Rosemount’s employee, on site to perform Rosemount’s work, retrieving a tool for use in Rosemount’s scope. Under earlier First Department authority, that connection would have been enough to trigger indemnity. Yet the Calix court held that those factors were not controlling because the injury-producing condition, the masonite floor covering, was Consigli’s work, not Rosemount’s.

Under the Ramirez and Cackett framework, Rosemount’s indemnity obligation would have been triggered simply because the plaintiff was its employee performing work on site at the time of his fall. Calix rejects that approach. After Calix, the employment relationship alone does not satisfy the “arising out of” language in an indemnification provision. Instead, the dispositive inquiry is whether the condition that caused the injury arose from the proposed indemnitor’s contractual work.

Conclusion

Dibrino and Calix have brought uniformity to an area of law that had been previously applied inconsistently across departments. Where the Second and Third Departments had long required a direct causal connection between the injury-producing condition and the proposed indemnitor’s contractual work, the First Department accepted generalized connections – employment of the injured worker, equipment ownership or general project presence – as sufficient to trigger indemnity. Dibrino resolved that tension by establishing a single statewide standard where “arising out of” language in indemnity provisions is satisfied only where the injury-producing condition itself arose from the proposed indemnitor’s actual contractual work.

For parties seeking contractual indemnity, the analytical burden has now substantially shifted in the First Department. General presence on the project, ownership of equipment and/or employment of the injured worker are no longer sufficient to satisfy the “arising out of” language consistently found in indemnification provisions. To establish that an injury “arose out of” the proposed indemnitor’s work, the party seeking indemnity must identify the specific condition that produced the injury and demonstrate that the condition was a product of the proposed indemnitor’s actual contractual scope. In doing so, the Court of Appeals adopted the standard that the Second and Third Departments had already applied.[17] As the Second and Third Departments were already requiring this showing, the practical impact of Dibrino and Calix falls most heavily on First Department practice, where the broad work-connection analysis of Ramirez and Cackett no longer controls. Although published Fourth Department authority addressing whether employment of the injured worker or equipment ownership alone can trigger an “arising out of” indemnity provision when the hazard was unrelated to the indemnitor’s work is sparse, the Fourth Department’s consistent requirement of a factual connection between the injury and the indemnitor’s contractual performance suggests alignment with the stricter approach.[18] Post-Dibrino, the Fourth Department confirmed that principle in Mock v. New York Athletic Club of City of New York.[19]

For proposed indemnitors, Dibrino and Calix provide a clear framework for resisting claims that an injury “arose out of” their work. Discovery and motion practice should focus on isolating the condition that allegedly caused the injury and establishing that it originated from another contractor’s work or from an act entirely outside the indemnitor’s defined scope. After Dibrino and Calix, the inquiry is no longer whether the accident occurred in the vicinity of the proposed indemnitor’s operations or involved the proposed indemnitor’s equipment but whether the proposed indemnitor’s contractual work actually produced the condition that caused the injury.

For contract drafters, the Dibrino decision carries particular weight. The Dibrino court emphasized that the contract “cabins the meaning of the term ‘Work’” through detailed definitional provisions, and it was those provisions that determined the scope of the indemnity obligation. The court’s close parsing of how “work” was defined in DAL’s subcontract, through articles specifying trade obligations, schedules and performance requirements, signals that courts will look to the four corners of the contract to determine what falls within and outside the proposed indemnitor’s scope of work. Subcontractors seeking to limit indemnity exposure should insist on precise, bounded scope-of-work definitions. Owners and general contractors who want to preserve broad indemnity coverage must draft with the understanding that courts will now read the definition of “work” as a limiting principle rather than a general descriptor.

The consequences of this uniformity will be felt across every stage of litigation, from the framing of third-party complaints through summary judgment practice and into settlement negotiations. Indemnity disputes that were once resolved by pointing to the proposed indemnitor’s project involvement will now turn on the granular question of which contractor’s work produced the specific condition that caused the injury. Practitioners operating in the First Department who fail to recognize that Ramirez and Cackett no longer control will find themselves on the wrong side of the settled rule.

Christian Balodis represents individuals, businesses and insurers in New York Labor Law, premises liability, personal injury and insurance defense matters. He handles high-exposure cases alleging negligence, unsafe conditions and serious personal injuries, and also prosecutes contract and commercial disputes on behalf of plaintiffs. Before joining Wilson Elser, he served as principal court attorney for Justice Mary V. Rosado of the New York State Supreme Court.

David A. Glazer is a seasoned trial lawyer who handles and oversees cases involving labor law, construction matters, general liability and commercial trucking. He focuses on complex cases alleging negligence, safety violations and dangerous conditions causing fatalities and serious personal injuries and property damage. He also defends against claims in the interrelated areas of construction liability, elevator liability, security liability, premises liability, general causality and property damage subrogation cases on behalf of property owners, real estate management companies, construction companies, service contractors and building managers. Glazer is also editor of TICL Journal.

This article appears in a forthcoming issue of TICL Journal, a publication of the Torts, Insurance and Compensation Law Section. For more information, please visit nysba.org/ticl.

Endnotes:

[1] Ramirez v. Almah, LLC, 169 A.D.3d 508, 94 N.Y.S.3d 38 (1st Dep’t 2019); Cackett v. Gladden Properties, LLC, 183 A.D.3d 419, 123 N.Y.S.3d 581 (1st Dep’t 2020).

[2] Dibrino v. Rockefeller Ctr. N., Inc., 2025 N.Y. Slip Op. 07077 (Ct. App. 2025).

[3] Calix v. Union Theol. Seminary in the City of N.Y., 2026 N.Y. Slip Op. 01449 (1st Dep’t 2026).

[4] Weidtman v. Tremont Renaissance Hous. Dev. Fund Co., Inc., 224 A.D.3d 488, 206 N.Y.S.3d 17 (1st Dep’t 2024).

[5] Id at 491.

[6] Ramirez v. Almah, LLC, 169 A.D.3d 508, 94 N.Y.S.3d 38 (1st Dep’t 2019).

[7] Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 123 N.Y.S.3d 581 (1st Dep’t 2020).

[8] Cantey v. City of New York, 184 A.D.3d 621, 125 N.Y.S.3d 748 (2d Dep’t 2020).

[9] Hannigan v. Staples, Inc., 137 A.D.3d 1546, 29 N.Y.S.3d 575 (3d Dep’t 2016).

[10] See, e.g., Tanksley v. LCO Bldg. LLC, 196 A.D.3d 1037, 151 N.Y.S.3d 293 (4th Dep’t 2021).

[11] Dibrino at 7.

[12] Id. at 8.

[13] Id.

[14] Id. at 7.

[15] Calix at 3.

[16] Id.

[17] See Cantey v. City of New York, 184 A.D.3d 621, 125 N.Y.S.3d 748 (2d Dep’t 2020); Hannigan v. Staples, Inc., 137 A.D.3d 1546, 29 N.Y.S.3d 575 (3d Dep’t 2016).

[18] See, e.g., Tanksley v. LCO Bldg. LLC, 196 A.D.3d 1037, 151 N.Y.S.3d 293 (4th Dep’t 2021).

[19] Mock v. New York Athletic Club of City of New York, 248 A.D.3d 1658, 256 N.Y.S.3d 895 (4th Dep’t 2026).