Goodleaf v. Tzivos Hashem, Inc. — 68 A.D.3d 817

Majority

p. 817

Mark Goodleaf, Respondent, v Tzivos Hashem, Inc., Defendant and Third-Party Plaintiff-Appellant, and H & H Builders, Inc., Respondent. Arnold Steel Company, Third-Party Defendant-Respondent, et al., Third-Party Defendant. (And a Second Third-Party Action.)

[889 NYS2d 478]

The Supreme Court properly granted the motion of the third-party defendant Arnold Steel Company (hereinafter Arnold) for summary judgment dismissing the third-party complaint insofar as asserted against it. In response to Arnold’s prime facie showing that the plaintiff did not sustain a “grave injury” as defined by Workers’ Compensation Law § 11, the appellant failed to raise a triable issue of fact (see Rubeis v Aqua Club, Inc., 3 NY3d 408 [2004]; DePaola v Albany Med. Coll., 40 AD3d 678 [2007]; O’Berg v MacManus Group, Inc., 33 AD3d 599 [2006]; Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487 , 487-488 [2001]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 , 324 [1986]).

The Supreme Court providently exercised its discretion in

p. 818

denying that branch of the appellant’s cross motion which was for leave to amend the third-party complaint to add a cause of action for contractual indemnification against Arnold, since the proposed amendment was patently devoid of merit (see Mackenzie v Croce, 54 AD3d 825 , 826 [2008]; Lucido v Mancuso, 49 AD3d 220 , 222 [2008]).

The appellant’s remaining contentions are not properly before this Court. Covello, J.P., Santucci, Chambers and Hall, JJ., concur.

Cases cited

Rubies v. Aqua Club, Inc. 3 NY3d 408 N.Y. 2004-11-23 p. 817
DePaola v. Albany Medical College 40 AD3d 678 N.Y. App. Div. 2007-05-08 p. 817
O'Berg v. MacManus Group, Inc. 33 AD3d 599 N.Y. App. Div. 2006-10-03 p. 817
Fitzpatrick v. Chase Manhattan Bank 285 AD2d 487 N.Y. App. Div. 2001-07-09 at 487-488 p. 817
Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 324 p. 817
Mackenzie v. Croce 54 AD3d 825 N.Y. App. Div. 2008-09-16 at 826 p. 818
Lucido v. Mancuso 49 AD3d 220 N.Y. App. Div. 2008-02-01 at 222 p. 818