McGurran v. DiCanio Planned Development Corp.
Decision Date | 15 June 1998 |
Parties | , 1998 N.Y. Slip Op. 6047 Andrew McGURRAN, Plaintiff, v. DiCANIO PLANNED DEVELOPMENT CORP., Defendant Third-Party Plaintiff-Respondent; DiCanio Residential Communities Corp., Third-Party Defendant-Appellant. |
Court | New York Supreme Court — Appellate Division |
James P. O'Connor (Montfort, Healy, McGuire & Salley, Garden City [Michael A. Baranowicz and E. Richard Rimmels, Jr.], of counsel), for appellant.
Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Roy W. Vasile, of counsel), for respondent.
BRACKEN, J.P., SANTUCCI, GOLDSTEIN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the third-party defendant, DiCanio Residential Communities Corp., appeals from (1) a decision of the Supreme Court, Suffolk County (Doyle, J.), dated August 13, 1996, and (2) a judgment of the same court, entered January 14, 1997, upon the decision, which is in favor of the third-party plaintiff and against it in the principal sum of $176,991.24.
ORDERED that the appellant is awarded one bill of costs.
The plaintiff, a construction worker, was allegedly injured when his elbow and wrist became wedged between a wall and a pickup truck which was being backed up by a co-employee. The plaintiff sued the owner of the construction site where the accident happened i.e., the defendant-third-party-plaintiff DiCanio Planned Development Corp. (hereinafter DPD). The plaintiff's employer, the third-party defendant DiCanio Residential Communities Corp. (hereinafter DRC) is immune from direct liability (see, Workers' Compensation Law § 29[6]; Cronin v. Perry, 244 A.D.2d 448, 664 N.Y.S.2d 123; Stephan v. Stein, 226 A.D.2d 364, 640 N.Y.S.2d 245).
On May 10, 1993, the plaintiff and DPD announced the terms of a stipulation of settlement on the record in open court. The settlement was based on the plaintiff's issuance of a release to DPD in return for the payment, by DPD's insurer, of $176,991.24. An attorney appearing for DRC stated, inter alia, that "[T]he State Insurance Fund consents [to the settlement]". The parties also stipulated that the third-party action in which DPD was seeking indemnification from DRC, whose employee was in fact the sole active tortfeasor, would remain pending.
Following its ultimately unsuccessful effort to obtain dismissal of the third-party action based on the anti-subrogation rule (see, McGurran v. DiCanio Planned Dev. Corp., 216 A.D.2d 538, 628 N.Y.S.2d 773), DRC sought dismissal of the third-party action based on the alternative argument that it owes no duty of indemnification unless DPD, the supposed indemnitee, can prove that it was under a legal obligation to pay damages in connection with the underlying personal injury action (see, e.g., Abrams v. Milwaukee Elec. Tool Corp., 171 A.D.2d 930, 566 N.Y.S.2d 798; Trojcak v. Wrynn, 45 A.D.2d 770, 357 N.Y.S.2d 32; Codling v. Paglia, 38 A.D.2d 154, 327 N.Y.S.2d 978, affd. 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622). In Codling v. Paglia, supra, at 161-162, 327 N.Y.S.2d 978, the court stated:
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