Opinion
2011-10-27
Thomas McGLINCHEY, et al., Plaintiffs,v.VASSAR COLLEGE, Defendant/Third–Party Plaintiff–Respondent,v.Kirchhoff Construction Management, Inc., Third–Party Defendant–Appellant.
Kenney Shelton Liptak Nowak LLP, Buffalo (Nancy A. Long of counsel), for appellant.Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Christine Bernstock of counsel), for respondent.
Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered March 22, 2011, which, to the extent appealed from as limited by the briefs, granted defendant/third-party plaintiff Vassar College's motion for summary judgment on its causes of action against third-party defendant Kirchhoff Construction Management for contractual and common-law indemnification, unanimously modified, on the law, to deny the motion as to the cause of action for common-law indemnification, and otherwise affirmed, without costs.
The injured plaintiff's testimony and the two unsworn medical reports submitted on the motion are insufficient to demonstrate that plaintiff sustained permanent and total loss of use of his left arm or foot, i.e., a “grave injury” within the meaning of Workers' Compensation Law § 11 ( see Castro v. United Container Mach. Group, 96 N.Y.2d 398, 401–402, 736 N.Y.S.2d 287, 761 N.E.2d 1014 [2001]; Vincenty v. Cincinnati Inc., 14 A.D.3d 392, 788 N.Y.S.2d 92 [2005] ). Thus, Vassar has no cause of action for common-law indemnification against Kirchhoff, plaintiff's employer.
The record demonstrates conclusively that Vassar was free from active negligence in connection with plaintiff's injuries. Thus, General Obligations Law § 5–322.1 does not bar its cause of action for contractual indemnification ( see Colozzo v. National Ctr. Found., Inc., 30 A.D.3d 251, 817 N.Y.S.2d 256 [2006] ).
ANDRIAS, J.P., SWEENY, ACOSTA, FREEDMAN, MANZANET–DANIELS, JJ., concur.