Opinion
2016-05897 Index No. 10806/14
01-09-2019
Anthony CASSESE, et al., Plaintiffs-Respondents, v. SVJ JORALEMON, LLC, et al., Defendants Third-Party Plaintiffs-Respondents; Tri–State Elevator Co., Inc., Third-Party Defendant-Appellant.
Babchik & Young, LLP, White Plains, N.Y. (Bruce M. Young, William H. Gagas, and Emily Mann of counsel), for third-party defendant-appellant. Robert J. Berkowitz & Associates, P.C., New York, N.Y. (Andrew D. Weitz of counsel), for plaintiffs-respondents. Faust Goetz Schenker & Blee LLP, New York, N.Y. (Robert P. Meyerson of counsel), for defendants third-party plaintiffs-respondents.
Babchik & Young, LLP, White Plains, N.Y. (Bruce M. Young, William H. Gagas, and Emily Mann of counsel), for third-party defendant-appellant.
Robert J. Berkowitz & Associates, P.C., New York, N.Y. (Andrew D. Weitz of counsel), for plaintiffs-respondents.
Faust Goetz Schenker & Blee LLP, New York, N.Y. (Robert P. Meyerson of counsel), for defendants third-party plaintiffs-respondents.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with one bill of costs, and the third-party defendant's motion pursuant to CPLR 3211(a) to dismiss the third-party complaint is granted.
On November 20, 2013, the plaintiff Anthony Cassese (hereinafter the injured plaintiff), an elevator mechanic employed by the third-party defendant, Tri–State Elevator Co., Inc. (hereinafter Tri–State), allegedly was injured when his left hand became trapped within a traction sheave of an elevator located in a building owned and operated by the defendants. The injured plaintiff, and his wife suing derivatively, commenced this action against the defendants, and the defendants commenced a third-party action against Tri–State, inter alia, for contractual and common-law indemnification. The third-party cause of action for contractual indemnification alleged that Tri–State agreed to indemnify the defendants pursuant to a contract dated January 13, 1987, between Tri–State and nonparty Joralemon Arms Company (hereinafter the 1987 contract). Tri–State moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the third-party complaint. The Supreme Court denied the motion, and Tri–State appeals.
"A motion to dismiss on the basis of CPLR 3211(a)(1) should be granted only where the documentary evidence that forms the basis of the defense is such that it refutes the plaintiff's factual allegations or conclusively disposes of the plaintiff's claims as a matter of law" ( Schiller v. Bender, Burrows & Rosenthal, LLP , 116 A.D.3d 756, 757, 983 N.Y.S.2d 594 ; see Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Held v. Kaufman , 91 N.Y.2d 425, 430–431, 671 N.Y.S.2d 429, 694 N.E.2d 430 ). On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference (see Leon v. Martinez , 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Nestor v. Putney Twombly Hall & Hirson, LLP , 153 A.D.3d 840, 841, 61 N.Y.S.3d 248 ). In assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits and other evidence submitted by the plaintiff to remedy any defects in the complaint (see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co. , 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471 ; Leon v. Martinez , 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Cadet–Duval v. Gurism Holding, Inc. , 147 A.D.3d 718, 719, 45 N.Y.S.3d 585 ). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).
Workers' Compensation Law § 11 prohibits third-party claims for 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 ( Workers' Compensation Law § 11 ; see 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 ; Muhjaj v. 77 Water St., Inc. , 148 A.D.3d 1165, 1166–1167, 50 N.Y.S.3d 489 ).
Here, Tri–State established its entitlement to dismissal of the third-party cause of action for common-law contribution or indemnification pursuant to CPLR 3211(a)(7). The third-party complaint failed to state a cause of action for common-law contribution or indemnification against Tri–State permitted by the Workers' Compensation Law. Specifically, the third-party complaint failed to allege, either directly or by reference to the plaintiffs' underlying complaint, that the injured plaintiff suffered a "grave injury" as defined by Workers' Compensation Law § 11 (cf. Cueto v. Hamilton Plaza Co., Inc. , 67 A.D.3d 722, 724, 889 N.Y.S.2d 66 ).
Tri–State also established its entitlement to dismissal of the third-party causes of action for contractual indemnification and alleging breach of contract for failure to procure insurance pursuant to CPLR 3211(a)(1). The 1987 contract relied on by the defendants in the third-party complaint and submitted by Tri–State in support of its motion conclusively disposes of the third-party causes of action for contractual indemnification and alleging breach of contract for failure to procure insurance as a matter of law. That contract contained no express agreement by the employer to indemnify the defendants for injuries of the kind alleged in this case or to procure insurance (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 ; Hooper Assoc. v. AGS Computers , 74 N.Y.2d 487, 491–492, 549 N.Y.S.2d 365, 548 N.E.2d 903 ).
Accordingly, the Supreme Court should have granted Tri–State's motion to dismiss the third-party complaint.
BALKIN, J.P., SGROI, MALTESE and CHRISTOPHER, JJ., concur.