Marte v. St. John's University

—In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an interlocutory judgment of the Supreme Court, Kings County (Hutcherson, J.), entered January 3, 1997, as, upon a jury verdict, is in favor of the third-party defendant and against it on the issue of liability.

Ordered that the interlocutory judgment is reversed insofar as appealed from, on the law, with costs, and a new trial is granted on the issue of the proper apportionment of fault between the third-party plaintiff and the third-party defendant.

An owner who is found liable for a worker’s damages under Labor Law § 240 (1) may, under certain circumstances, seek indemnification and/or contribution from the worker’s employer (see, Chapel v Mitchell, 84 NY2d 345 ; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 ; Freeman v National Audubon Socy., 243 AD2d 608 ; McNair v Morris Ave. Assocs., 203 AD2d 433 ; Young v Casabonne Bros., 145 AD2d 244 ; cf., Workers’ Compensation Law § 11). Where the owner bears some percentage of fault for the happening of the accident, indemnification is not available (see, Winiavski v Martin Paint Stores, 240 AD2d 565 ; Pazmino v Woodside Dev. Co., 212 AD2d 520 ). However, the owner can still seek contribution from the worker’s employer based on their comparative degrees of fault (see, Guzman v Haven Plaza Hous. Dev. Fund, supra, at 567-568 ; Young v Casabonne Bros., supra). The fact that the worker may not sue the employer directly because of Workers’ Compensation Law § 11 is not a bar to the action (see, Russo v Hilman, 146 AD2d 690 ).

The appellant’s remaining claims are unpreserved for appellate review. Ritter, J. P., Thompson, Goldstein and McGinity, JJ., concur.