Spiegler v. Gerken Building Corporation

• Decision Date: 19 December 2006
• Docket Number: 2005-10947.
• Citation: 826 N.Y.S.2d 674,35 A.D.3d 715,2006 NY Slip Op 09601
• Parties: KERRY SPIEGLER et al., Plaintiffs, v. GERKEN BUILDING CORPORATION et al., Defendants, and INTEGRITY CONTRACTING, INC., Defendant and Third-Party Plaintiff-Respondent. ALLRAN ELECTRIC OF NEW YORK, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

35 A.D.3d 715

826 N.Y.S.2d 674

2006 NY Slip Op 09601

KERRY SPIEGLER et al., Plaintiffs, v. GERKEN BUILDING CORPORATION et al., Defendants, and INTEGRITY CONTRACTING, INC., Defendant and Third-Party Plaintiff-Respondent ALLRAN ELECTRIC OF NEW YORK, INC., Third-Party Defendant-Appellant.

2005-10947.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided December 19, 2006.

In an action to recover damages for personal injuries, etc., the

third-party defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated November 1, 2005, as denied those branches of its motion which were for summary judgment dismissing the third-party causes of action based on contractual and common-law indemnification.

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 cause of action based on 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, without costs or disbursements.

On or about May 5, 2000 the injured plaintiff Kerry Spiegler was working on the construction of a bank office on premises owned by the Gerken Building Corporation and leased to the North Fork Bank. Integrity Contracting Inc. (hereinafter Integrity), was the general contractor at the work site and had entered into a subcontract purchase order agreement with Allran Electric of New York, Inc. (hereinafter Allran), to provide electric work at the work site. Spiegler, who was employed by Allran, allegedly was injured when a length of pipe fell on him. After the accident, Spiegler completed his workday, reported back to work the next day, and continued working thereafter for at least "a few months." He later claimed that the accident caused injury to his lumbar spine area, including disc bulges and herniations, as well as radiculopathy. He received workers' compensation for his medical expenses.

The plaintiffs subsequently commenced this action, inter alia, against Integrity, which, in turn, commenced a third-party action against Allran, seeking, inter alia, contractual and common-law indemnification. Allran moved, inter alia, for summary judgment dismissing the contractual indemnification cause of action on the ground that there was no agreement to indemnify, and dismissing the common-law indemnification cause of action on the ground that Spiegler had not sustained a "grave injury" within the meaning of Workers' Compensation Law § 11. The Supreme Court denied the motion, and this appeal followed.

We agree with Allran's contention that the cause of action for common-law indemnity should have been dismissed. Employers such as Allran who provide workers' compensation coverage are immune from tort liability except in a narrow class of cases in which the plaintiff has sustained a "grave injury" (see Workers' Compensation Law § 11; Rubeis v Aqua Club, Inc., 3 NY3d 408, 415-416 [2004]). By...