REGO v. Brakewell Steel Fabricators, Inc., third-party defendant-respondent. (2008)

In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Orange County (McGuirk, J.), dated November 16, 2007, which granted the third-party defendant's motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

On March 14, 2005, the plaintiff allegedly fell and broke her ankle in the course of her employment with the third-party defendant, Brakewell Steel Fabricators, Inc. (hereinafter Brakewell). The plaintiff commenced this action against 55 Leone Lane, LLC, Daniel P. Doyle, Sr., and Marion Doyle (hereinafter the defendants), who, at various times, owned the property where the plaintiff allegedly fell.  The defendants commenced a third-party action against Brakewell for common-law and contractual indemnification.

 An employer may be held liable for common-law indemnification if the employee has sustained a grave injury as defined by the Workers' Compensation Law (see Workers' Compensation Law § 11;  Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978;  Blackburn v. Wysong & Miles Co., 11 A.D.3d 421, 783 N.Y.S.2d 609).  Grave injuries are those injuries that are listed in the statute and are determined to be permanent (see Blackburn v. Wysong & Miles Co., 11 A.D.3d at 422, 783 N.Y.S.2d 609;  Ibarra v. Equipment Control, 268 A.D.2d 13, 707 N.Y.S.2d 208).  A broken ankle is not an injury listed in the statute.  Accordingly, the plaintiff did not sustain a grave injury as defined by the statute.  The Supreme Court, therefore, correctly granted that branch of Brakewell's motion which was for summary judgment dismissing the defendants' common-law indemnification claim.

 Further, the defendants were not entitled to contractual indemnification from Brakewell.  Even in the absence of grave injury, an employer may be subject to an indemnification claim “based upon a provision in a written contract” (Workers Compensation Law § 11;  see Rodrigues v. N & S Bldg. Contrs., Inc., 5 N.Y.3d 427, 430, 805 N.Y.S.2d 299, 839 N.E.2d 357).  Pursuant to General Obligations Law § 5–321, a lease provision which purports to exempt a lessor from liability for its own acts of negligence is void and unenforceable (see Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306;  Gibson v. Bally Total Fitness Corp., 1 A.D.3d 477, 767 N.Y.S.2d 135;  Radius, Ltd. v. Newhouse, 213 A.D.2d 614, 624 N.Y.S.2d 227).  The broad indemnification provision in the lease purportedly shifts the entire responsibility for damages to Brakewell regardless of the defendants' own negligence.  Accordingly, the indemnification clause is unenforceable under General Obligations Law § 5–321 (see Gibson v. Bally Total Fitness Corp., 1 A.D.3d 477, 767 N.Y.S.2d 135;  Leone v. Leewood Serv. Sta., 212 A.D.2d 669, 672, 624 N.Y.S.2d 610).  Therefore, the Supreme Court correctly granted that branch of Brakewell's motion which was for summary judgment dismissing the defendants' contractual indemnification claim.

The defendants' remaining contention is without merit.