NOEL v. 336 95TH REALTY LLC (2024)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered May 22, 2023, which granted third-party defendant Champion Elevator Corp.'s motion to dismiss the third-party complaint, unanimously affirmed, without costs.

The motion court properly dismissed defendant/third-party plaintiff 336 E 9th Realty LLC's (Owner) complaint.  Pursuant to Workers' Compensation Law § 11, an employer may be liable to third parties for indemnification or contribution when an employee suffers a grave injury as defined by the statute, or when the parties enter into a binding contractual indemnification agreement (see Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 365, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005];  Alulema v. ZEV Elec. Corp., 168 A.D.3d 469, 470, 90 N.Y.S.3d 171 [1st Dept. 2019]).  Here, even liberally construed, the third-party complaint, incorporating plaintiff's underlying complaint and bill of particulars, does not allege that plaintiff suffers from permanent and total loss of use of his arm to fall within the definition of grave injury set forth in Workers' Compensation Law § 11 (see Tavarez v. LIC Dev. Owner, L.P., 205 A.D.3d 565, 567, 169 N.Y.S.3d 266 [1st Dept. 2022];  Cassese v. SVJ Joralemon, LLC, 168 A.D.3d 667, 669, 92 N.Y.S.3d 127 [2d Dept. 2019]).

We have considered the Owner's remaining arguments and find them unavailing.