MCINTOSH v. A.B.C. Tank Repair & Lining, Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendants. (2020)

DECISION & ORDER

In an action to recover damages for personal injuries, the third-party defendant A.B.C. Tank Repair & Lining, Inc., appeals from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated January 26, 2018. The order denied the motion of the third-party defendant A.B.C. Tank Repair & Lining, Inc., for summary judgment dismissing the third-party complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the third-party defendant A.B.C. Tank Repair & Lining, Inc., for summary judgment dismissing the third-party complaint insofar as asserted against it is granted.

In February 2014, the third-party defendant A.B.C. Tank Repair & Lining, Inc. (hereinafter A.B.C. Tank), was hired by the defendant third-party plaintiff, Ronit Realty, LLC (hereinafter Ronit), to remove an oil tank at certain premises located in Brooklyn. On February 10, 2014, the plaintiff, an employee of A.B.C. Tank, allegedly was injured at the premises while acting within the scope of his employment. In March 2014, the plaintiff commenced this action against Ronit to recover damages for personal injuries. In December 2016, Ronit commenced a third-party action against, among others, A.B.C. Tank, asserting, inter alia, causes of action for contribution, common-law indemnification, and contractual indemnification, and to recover damages for breach of contract based upon a failure to purchase insurance. A.B.C. Tank moved for summary judgment dismissing the third-party complaint insofar as asserted against it. The Supreme Court denied A.B.C. Tank's motion, with leave to renew upon the completion of discovery on the issue of whether the plaintiff sustained a “grave injury” within the meaning of Workers' Compensation Law § 11. A.B.C. Tank appeals.

Workers' Compensation Law § 11 prohibits third-party claims for contribution or indemnification against an employer unless the employee has sustained a “grave injury” or there is a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the third-party claimant (see Workers' Compensation Law § 11; Fleming v. Graham, 10 N.Y.3d 296, 299, 857 N.Y.S.2d 8, 886 N.E.2d 769; Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 367, 795 N.Y.S.2d 491, 828 N.E.2d 593; Cassese v. SVJ Joralemon, LLC, 168 A.D.3d 667, 669, 92 N.Y.S.3d 127; Muhjaj v. 77 Water St., Inc., 148 A.D.3d 1165, 1166–1167, 50 N.Y.S.3d 489).

Here, in support of its motion, A.B.C. Tank established, prima facie, that there was no written agreement between the parties that required it to contribute, indemnify, or procure insurance (see Chong Fu Huang v. 57–63 Greene Realty, LLC, 174 A.D.3d 777, 778, 107 N.Y.S.3d 118; Cassese v. SVJ Joralemon, LLC, 168 A.D.3d at 669–670, 92 N.Y.S.3d 127; cf. Rodrigues v. N & S Bldg. Contrs., Inc., 5 N.Y.3d 427, 432–433, 805 N.Y.S.2d 299, 839 N.E.2d 357). Further, A.B.C. Tank established, prima facie, that the plaintiff was injured in the course of his employment and that the plaintiff's injuries did not constitute a “grave injury” within the meaning of Workers' Compensation Law § 11 (see McDonnell v. Sandaro Realty, Inc., 165 A.D.3d 1090, 1097, 87 N.Y.S.3d 86; Delvalle v. Mercedes Benz USA, LLC, 117 A.D.3d 894, 985 N.Y.S.2d 918; Szczepanski v. Dandrea Constr. Corp., 90 A.D.3d 642, 644, 934 N.Y.S.2d 432; Maxwell v. Rockland County Community Coll., 78 A.D.3d 793, 794, 911 N.Y.S.2d 130; Kitkas v. Windsor Place Corp., 72 A.D.3d 649, 897 N.Y.S.2d 652). In opposition, Ronit failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted A.B.C. Tank's motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

RIVERA, J.P., CHAMBERS, MILLER and CONNOLLY, JJ., concur.