Opinion
Submitted September 13, 1999
December 2, 1999
In an action to recover damages for personal injuries, etc., the third-party defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated July 13, 1998, as denied their motion for summary judgment dismissing the third-party complaint.
Wallace D. Gossett, Brooklyn, N.Y. (Lawrence Heisler of counsel), for third-party defendants-appellants.
Frank V. Merlino (Sweetbaum Sweetbaum, Lake Success, N Y [Marshall D. Sweetbaum] of counsel), for defendants third-party plaintiffs-respondents.
Monsour, Winn, Kurland Warner, LLP, Lake Success, N.Y. (John L. Kurland and Michael S. Seltzer of counsel), for plaintiffs.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs to the respondents.
We agree with the Supreme Court that triable issues of fact exist precluding summary judgment in favor of the third-party defendants (see, Hurley v. Izzo, 248 A.D.2d 674 ; Ried v. Courtesy Bus Co., 234 A.D.2d 531 ).
We have not considered the third-party defendants' contention that the action against them is barred by a 1996 amendment to Workers' Compensation Law § 11, which limits the right to seek contribution or indemnification from an injured person's employer to those cases in which the employee has suffered a "grave injury" (L 1996, ch. 635, eff. Sept. 10, 1996). The third-party defendants' claim that the injured plaintiff did not sustain a "grave injury" within the meaning of the statute was improperly raised for the first time in their reply papers, and the plaintiffs did not have an opportunity to submit evidence to oppose the newly-raised claim (see, Matter of TIG Ins. Co. v. Pellegrini, 258 A.D.2d 658 ; Hirsch v. Syrota, 252 A.D.2d 538, [ 253 A.D.2d 538], 539;Calderone v. Harrel, 237 A.D.2d 318 ).
BRACKEN, J.P., S. MILLER, KRAUSMAN, and H. MILLER, JJ., concur.