Joseph Martelle v City of New York

Martelle v City of New York 2006 NY Slip Op 05333 [31 AD3d 400] July 5, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Joseph Martelle, Plaintiff,
v
City of New York et al., Defendants and Third-Party Plaintiffs-Respondents. Aiello and Sons Air Conditioning Co., Inc., Third-Party Defendant-Appellant.

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In an action to recover damages for personal injuries, the third-party defendant appeals from so much of an order of the Supreme Court, Richmond County (Mega, J.), dated February 25, 2005, as denied its motion to dismiss the third-party complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the third-party claim for common-law indemnification, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the respondents, and the third-party claim for common-law indemnification is dismissed.

Contrary to the contentions of the third-party defendant, the Supreme Court properly denied that branch of its motion which was to dismiss the third-party claim for contractual indemnification. Workers' Compensation Law § 11 generally bars claims against employers for indemnification or contribution arising out of injuries sustained by an employee acting within the scope of employment (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363 [2005]). However, an exception exists where there is "a provision in 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 claimant [*2]or person asserting the cause of action for the type of loss suffered" (Workers' Compensation Law § 11). Construing the indemnification clause at issue in light of all of the contract documents, the purpose of the entire agreement, and the surrounding facts and circumstances (see generally Podhaskie v Seventh Chelsea Assoc., 3 AD3d 361 [2004]), we find that it was sufficient to meet the requirements of the statute (see Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427 [2005]; Acosta v Green Mgt. Corp., 267 AD2d 67 [1999]).

However, since it is undisputed that the plaintiff did not suffer a "grave injury" within the meaning of Workers' Compensation Law § 11, the Supreme Court should have granted that branch of the third-party defendant's motion which sought dismissal of the third-party claim for common-law indemnification (see Soto v Alert No. 1 Alarm Sys., 272 AD2d 466 [2000]). Miller, J.P., Ritter, Goldstein and Lunn, JJ., concur.