In Juarez v. Avacon Management LLC d/b/a Avacon Builders Developers (2026), the First Department affirmed the lower court's dismissal of the contractual indemnification claim where the scope of the subcontractor's work was "never defined."

The plaintiff was an employee of the subcontractor Skittles Services Corp., who was injured when he fell from a scaffold while removing bricks from ceiling beams on the first floor of a construction project. He sued the owner and the general contractor who subcontracted with his employer. The general contractor, Avacon, then brought a third-party action against Skittles for contractual indemnification and breach of contract for alleged failure to procure insurance. The parties had orally negotiated the work to be performed by Skittles, and later signed a written subcontract rider stating that Skittles would indemnify Avacon for injuries arising out of work covered by their oral agreement and would maintain commercial general liability insurance. Skittles moved for summary judgment, arguing that the parties had never actually agreed on a definite scope of work and that the plaintiff's accident did not arise from the work Skittles was hired to perform. 

The New York County Supreme Court granted summary judgment in favor of Skittles. They held that the indemnification rider could not be enforced because the material terms of the indemnification provision, specifically the scope of work, were not defined nor understood by the parties in the oral agreement, and there was no meeting of the minds to give the indemnity provision any meaning. Since the rider's indemnity obligation applied only to injuries arising from work covered by the parties' agreement, the lack of a defined scope meant there was no clear and unmistakable intent to indemnify Avacon for this accident. The Court also found no viable breach of contract claim based on insurance procurement and dismissed the third-party complaint.

The Appellate Division affirmed the lower court's order in full. The majority agreed that the indemnification provision failed because the scope of work was never defined, and "the vagueness in the oral agreement's scope of work is evidence that the rider did not manifest a clear and unmistakable intent to indemnify Avacon for particular liabilities." The Court further stated that the record showed Skittles obtained the required insurance, and a carrier's refusal to indemnify Avacon as an additional insured did not itself establish a breach by Skittles. There was dissent, in part, with Justice Rodriguez stating that the parties' course of performance made the agreement sufficiently definite and that there were factual issues as to whether the plaintiff's work fell within the orally agreed-upon work performed.

Practical takeaway: The decision continues to emphasize the Court's strict approach to contractual indemnification. Accordingly, a party seeking indemnity must point to a clear and unambiguous contractual promise. Courts will not create an inference of indemnity where a material contractual term, such as the scope of work, is not defined. A signed rider alone is not enough where the underlying work covered by the agreement remains vague.

In dicta, the case also held that prior rulings do not trigger case law unless the precise legal issue was previously decided, and that a subcontractor's procurement of the required insurance generally satisfies its contractual obligation, even if the insurer later disputes coverage as an additional insured.