HERNANDEZ v. OPERA OWNERS INC (2024)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on July 17, 2023, which, to the extent appealed from as limited by the briefs, denied third-party defendant Poltech Inc.’s motion to dismiss pursuant to CPLR 3211(a)(1) and (7) or, alternatively, to stay the third-party action, unanimously reversed, on the law, without costs, the motion to dismiss the common-law claims in the third-party complaint against Poltech and to stay the remainder of the third-party action against Poltech granted.

Since neither the complaint, the bill of particulars, nor the third-party complaint alleged that plaintiff suffered a “grave injury” as defined by Workers’ Compensation Law § 11, dismissal of the third-party complaint's common-law claims is appropriate (see Noel v. 336 E 95th Realty LLC, 227 A.D.3d 505, 209 N.Y.S.3d 50 [1st Dept. 2024];  Cassese v. SVJ Joralemon, LLC, 168 A.D.3d 667, 669, 92 N.Y.S.3d 127 [2d Dept. 2019]).  The remainder of the third-party action must be stayed.  While third-party plaintiffs were not signatories to the contract among third-party defendants Poltech, Eugene Weinstein, and Wenjun Jing, the gravamen of their contractual claims are premised upon being third-party beneficiaries of that contract (see Matter of Belzberg v. Verus Invs. Holdings Inc., 21 N.Y.3d 626, 631, 977 N.Y.S.2d 685, 999 N.E.2d 1130 [2013];  see also Fritschler v. Draper Mgt., LLC, 203 A.D.3d 623, 624, 164 N.Y.S.3d 609 [1st Dept. 2022], lv dismissed & denied 39 N.Y.3d 955, 178 N.Y.S.3d 749, 199 N.E.3d 902 [2022]).  Given that the claims are premised upon having rights and benefits under the Poltech contract, it follows that they are also subject to its ADR clause (see Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 A.D.3d 1138, 1142, 87 N.Y.S.3d 576 [2d Dept. 2018]).