RAMOS v. Advance Construction Concepts, Inc., third-party defendant-appellant. (2007)

In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated January 23, 2006, as denied that branch of its motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification with leave to renew upon completion of discovery and that branch of its motion which was for summary judgment dismissing the third-party causes of action for common-law indemnification and contribution and all cross claims against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing the third-party cause of action for contractual indemnification “with leave to renew when discovery, including examinations before trial of all parties, is complete.”   With regard thereto, summary judgment would have been premature since substantial discovery remained outstanding (see Great South Bay Family Med. Prac. v. Raynor, 35 A.D.3d 808, 826 N.Y.S.2d 729;  Rupp v. City of Port Jervis, 10 A.D.3d 391, 392, 780 N.Y.S.2d 766).

With regard to that branch of the appellant's motion which was to dismiss the third-party causes of action for common-law indemnification and contribution on the ground that the plaintiff's injuries did not fall within the definition of “grave injury” as defined by Workers' Compensation Law § 11, the appellant met its initial burden of demonstrating its entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Marshall v. Arias, 12 A.D.3d 423, 424, 784 N.Y.S.2d 589;  Fitzpatrick v. Chase Manhattan Bank, 285 A.D.2d 487, 488, 728 N.Y.S.2d 484;  Ibarra v. Equipment Control, 268 A.D.2d 13, 17, 707 N.Y.S.2d 208).   In opposition, the plaintiff raised a triable issue of fact.