Opinion
5871.
Decided on October 27, 2011.
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.
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.
Andrias, J.P., Sweeny, Acosta, Freedman, Manzanet-Daniels, JJ.
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 NY2d 398, 401-402; Vincenty v Cincinnati Inc. , 14 AD3d 392 ). 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 AD3d 251 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.