Majority
p. 626Thomas McGlinchey et al., Plaintiffs, v Vassar College, Defendant/Third-Party Plaintiff-Respondent. Kirchhoff Construction Management, Inc., Third-Party Defendant-Appellant. [931 NYS2d 503]
p. 627
The injured plaintiffs 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 [2001]; Vincenty v Cincinnati Inc., 14 AD3d 392 [2005]). Thus, Vassar has no cause of action for common-law indemnification against Kirchhoff, plaintiffs employer.
The record demonstrates conclusively that Vassar was free from active negligence in connection with plaintiffs 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 [2006]). Concur — Andrias, J.E, Sweeny, Acosta, Freedman and Manzanet-Daniels, JJ.
Cases cited
- Castro v. United Container Machinery Group, Inc. 96 NY2d 398 at 401-402 p. 627
- Colozzo v. National Center Foundation, Inc. 30 AD3d 251 p. 627