BARTEK v. MURPHY (1999)

On December 3, 1994, defendant-third-party plaintiff, Carol L. Murphy, entered into an agreement with third-party defendant, Glenn H. Benedict, to reinforce the roof of her barn.   On December 19, 1994, plaintiff Richard J. Bartek, Jr., an employee of Benedict, was injured when he fell 20 feet from scaffolding.   Plaintiffs commenced an action against Murphy, individually and d/b/a Murphy Orchards, on March 19, 1997, alleging, inter alia, violations of Labor Law § 240(1) and (2).   Murphy commenced a third-party action against Benedict, individually and d/b/a Glenn H. Benedict Construction Company, on September 23, 1997, seeking common-law indemnification.

 Supreme Court properly granted plaintiffs' motion for partial summary judgment on liability under Labor Law § 240 (see, Fichter v. Smith, 259 A.D.2d 1023, 688 N.Y.S.2d 337, lv. dismissed in part and denied in part 93 N.Y.2d 994, 696 N.Y.S.2d 104, 718 N.E.2d 409).   The court also properly denied Murphy's cross motion for summary judgment on the third-party complaint and granted Benedict's cross motion for summary judgment dismissing the third-party complaint.   Contrary to Murphy's contention, Workers' Compensation Law § 11, enacted September 10, 1996, does not violate Murphy's rights under the contracts clause of the United States Constitution because no implied contract existed between Murphy and Benedict that required Benedict to indemnify Murphy.   Benedict's obligation to indemnify Murphy in December 1994, when the accident occurred, was based on common-law indemnification (see, e.g., Felker v. Corning Inc., 90 N.Y.2d 219, 226, 660 N.Y.S.2d 349, 682 N.E.2d 950).   Because the action was commenced after the enactment of Workers' Compensation Law § 11 (SEE, MAJEWSKI V. BROADALBIN-perth cent. school Dist., 91 n.y.2d 577, 590, 673 N.Y.S.2d 966, 696 N.E.2d 978) and Bartek did not suffer a “grave injury” within the meaning of that section, Benedict's common-law obligation to indemnify Murphy was extinguished by statute (see, Workers' Compensation Law § 11).   Finally, the cross appeal is dismissed because plaintiffs are not aggrieved by the dismissal of the third-party action (see, CPLR 5511;  Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139;  Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, 602 N.Y.S.2d 449, lv. denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303).

Cross appeal unanimously dismissed and order affirmed without costs.

MEMORANDUM: