BERG v. Flik International Corp., third-party defendant-respondent. (2006)

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated April 1, 2005, which granted the third-party defendant's motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

The third-party defendant, Flik International Corp. (hereinafter Flik), operated a cafeteria in the offices of D'Arcy, Masius, Benton & Bowles (hereinafter D'Arcy) pursuant to a written contract between itself and D'Arcy.   D'Arcy is alleged to be a wholly-owned subsidiary of the defendant third party-plaintiff, MacManus Group, Inc. (hereinafter MacManus).   MacManus also owns the building in which D'Arcy's offices are located.

The plaintiff Caroline O'Berg (hereinafter the plaintiff) was employed by Flik as an assistant manager in the cafeteria and suffered a work-related accident in which a ceiling tile fell down and struck her in the head, injuring her.   She received Workers' Compensation benefits as a result of that accident.   After she sued MacManus for its alleged negligence in maintaining the building, MacManus commenced a third-party action against Flik for indemnification.   The Supreme Court granted Flik's motion for summary judgment dismissing the third-party complaint on the ground that the action was barred by the Workers' Compensation Law (see Workers' Compensation Law § 11).   We affirm.

In response to Flik's showing that the plaintiff did not sustain a grave injury as defined by Workers Compensation Law § 11, MacManus failed to raise a triable issue of fact (see Rubeis v. Aqua Club, 3 N.Y.3d 408, 788 N.Y.S.2d 292, 821 N.E.2d 530;  Krollman v. Food Automation Serv. Techniques, 13 A.D.3d 1209, 787 N.Y.S.2d 581;  Sergeant v. Murphy Family Trust, 292 A.D.2d 761, 739 N.Y.S.2d 790).   Additionally, the contracts relied upon by MacManus fail to show the existence of an express agreement between Flik and itself for contribution and/or indemnification, as required by the statute (see Tonking v. Port Auth. of N.Y. & N.J., 3 N.Y.3d 486, 787 N.Y.S.2d 708, 821 N.E.2d 133;   Lipshultz v. K & G Indus., 294 A.D.2d 338, 742 N.Y.S.2d 90;  cf. Rodrigues v. N & S Bldg. Contrs., 5 N.Y.3d 427, 805 N.Y.S.2d 299, 839 N.E.2d 357).   Accordingly, Flik's motion was properly granted (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

MacManus's remaining contention is without merit (see CPLR 3212[f] ).