Opinion
2002-08928
Argued September 2, 2003.
October 14, 2003.
In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Westchester County (La Cava, J.), entered August 29, 2002, which denied its motion pursuant to Workers' Compensation Law § 11 for summary judgment dismissing the third-party complaint.
Gary A. Cusano, Tarrytown, N.Y. (Edwin B. Winder of counsel), for third-party defendant-appellant.
Roche, Corrigan, McCoy Bush, Albany, N.Y. (Robert P. Roche of counsel), for defendant third-party plaintiff-respondent.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly was injured when a ladder slipped out from under him while he was descending from a roof on a building owned by the defendant Hillside Development Corp. (hereinafter Hillside). He commenced this action against Hillside, seeking damages for personal injuries. Hillside commenced a third-party action against County Center Roofing Co., Inc. (hereinafter CC Roofing). Hillside alleged that the plaintiff was attempting to hold it vicariously liable for the negligence of CC Roofing, which provided the ladder, and sought indemnity. CC Roofing moved pursuant to Workers' Compensation Law § 11 for summary judgment dismissing the third-party complaint, contending that a third-party action against it was precluded because, inter alia, the plaintiff was injured while in the course of his employment with CC Roofing and did not sustain a grave injury ( see Thompson v. Bernard G. Janowitz Constr. Corp., 301 A.D.2d 588; Schuler v. Kings Plaza Shopping Ctr. and Mar., 294 A.D.2d 556, 558-559; Guijarro v. V.R.H. Constr. Corp., 290 A.D.2d 485, 486). However, in opposition to the motion, Hillside raised a triable issue of fact as to whether the plaintiff was, in fact, an employee of CC Roofing ( cf. Abouzeid v. Grgas, 295 A.D.2d 376; Koren v. Zazo, 262 A.D.2d 287; Matter of Pavan, 173 A.D.2d 1036). Accordingly, the motion was properly denied.
RITTER, J.P., GOLDSTEIN, McGINITY and CRANE, JJ., concur.