FALKOWSKI v. 81 AND OF WATERTOWN INC (2001)

 Supreme Court properly denied that part of the motion of third-party defendant Kulback's & Associates, Inc. (Kulback's) seeking summary judgment dismissing the cause of action in the amended third-party complaint for contractual indemnification from Kulback's and properly granted that part of the cross motion of defendant-third-party plaintiff, 81 and 3 of Watertown, Inc. (81 and 3), seeking summary judgment on that cause of action.   Kulback's contends that 81 and 3 is not entitled to contractual indemnification from Kulback's because the construction contract containing the agreement to indemnify was between only Kulback's and Innovative General Contractor, Inc. (Innovative).  We disagree. 81 and 3 affirmatively pleaded in the amended third-party complaint that it entered into the construction contract with Kulback's, and that fact was admitted by Kulback's in its answer.   Facts admitted by a party's pleadings constitute judicial admissions (see, Prince, Richardson on Evidence § 8-215, at 523-524 [Farrell 11th ed.] ).   That fact is thus not in controversy (see, Evans v. Ithaca Urban Renewal Agency, 205 A.D.2d 844, 846, 613 N.Y.S.2d 446;  Urraro v. Green, 106 A.D.2d 567, 568, 483 N.Y.S.2d 80;  see also, Resseguie v. Adams, 55 A.D.2d 698, 699, 388 N.Y.S.2d 955, affd. sub nom.  Locator-Map, Inc. v. Adams, 42 N.Y.2d 1022, 398 N.Y.S.2d 658, 368 N.E.2d 836). 81 and 3 is entitled to contractual indemnification from Kulback's for the further reason that Innovative is a wholly owned subsidiary of 81 and 3 and acted on behalf of 81 and 3 when signing the contract (see, Clute v. Ellis Hosp., 184 A.D.2d 942, 945, 585 N.Y.S.2d 140).

 The court also properly denied that part of Kulback's motion seeking summary judgment dismissing the first cause of action in the amended third-party complaint for common-law contribution and indemnification.   Kulback's failed to satisfy its initial burden of establishing as a matter of law that plaintiff did not sustain a “grave injury” within the meaning of Workers' Compensation Law § 11 to support its defense to that cause of action (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Order unanimously affirmed with costs.

MEMORANDUM: