JARVIS v. CROTONA ASSOCIATES LLC

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Ivan JARVIS, et al., Plaintiffs-Respondents, v. CROTONA ASSOCIATES, LLC, et al., Defendants-Appellants.

Argus Realty, Ltd., etc., et al., Third-Party Plaintiffs-Appellants, v. Zachary Construction Corp., Third-Party Defendant-Respondent-Appellant.

Decided: January 20, 2005

MAZZARELLI, J.P., WILLIAMS, GONZALEZ, SWEENY, CATTERSON, JJ. Cerussi & Spring, White Plains (Jennifer R. Freedman of counsel), for appellants. Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for respondent-appellant. The Law Offices of Daniel P. Buttafuoco & Associates, LLC, Woodbury (Ellen Buchholz of counsel), for respondents.

Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered June 25, 2004, which, to the extent appealed from, denied so much of defendants' motion for summary judgment as sought dismissal of the seventh cause of action in the complaint, and so much of that motion by third-party plaintiffs (the Argus/Adler defendants) and the cross motion by third-party defendant for summary judgment dismissing the third-party complaint, unanimously modified, on the law, the cross motion granted to the extent of dismissing the first and second causes of action in the third-party complaint, and otherwise affirmed, without costs.

 The court properly denied the motions insofar as they sought dismissal of the complaint.   There are triable issues as to whether the injured plaintiff had been hired by third-party defendant prior to the accident, which occurred during sheetrock installation.   The court also properly declined to dismiss the cause of action pursuant to Labor Law § 200 in light of remaining issues as to the extent of supervision, direction and control exercised by Argus at the work site (see Gawel v. Consolidated Edison Co. of N.Y., 237 A.D.2d 138, 655 N.Y.S.2d 351 [1997] ).   Moreover, in light of these issues, the Argus/Adler motion for summary judgment on the third-party claim for a conditional order of contractual indemnification was properly denied (see Sheehan v. Fordham Univ., 259 A.D.2d 328, 687 N.Y.S.2d 22 [1999] ).   However, the third-party claims for common-law indemnification and contribution should be dismissed because the injury sustained-loss of vision in one eye-is not a “grave injury” under Workers' Compensation Law § 11 (Flores v. Lower E. Side Serv. Ctr., 3 A.D.3d 459, 770 N.Y.S.2d 855 [2004], lv. granted 3 N.Y.3d 605, 785 N.Y.S.2d 22, 818 N.E.2d 664 [2004];  Ibarra v. Equipment Control, 268 A.D.2d 13, 18, 707 N.Y.S.2d 208 [2000] ).