Colon v. Belmont Realty Co.

299 A.D.2d 218, 749 N.Y.S.2d 142, 2002 N.Y. App. Div. LEXIS 10787

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2002
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Patricia Williams, J.), entered October 15, 2001, which, in an action by a laborer for personal injuries sustained on premises owned by defendants, and a third-party action by the premises owners against plaintiffs employer and the premises lessee, insofar as appealed from as limited by the briefs, granted the employer’s motion for summary judgment dismissing the third-party complaint as against it for lack of a “grave injury” as required by Workers’ Compensation Law § 11, unanimously affirmed, without costs.

The third-party action was properly dismissed as against the employer on the ground that the main action was commenced after the September 10, 1996 effective date of the amendment to Workers’ Compensation Law § 11 prohibiting any contribution and indemnity claims against a plaintiffs employer unless that plaintiff sustained a “grave injury” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577). It does not avail the premises owners that plaintiffs commenced the main action pursuant to former CPLR 306-b (b), and with express leave of the court, after a prior, substantially identical action, commenced before September 10, 1996, was dismissed for lack of personal jurisdiction (cf Ellers v Raimondo & Son Constr. Co., 277 AD2d 156, 156-157; Great Lakes Contr. v Allied Bldrs., 176 Misc 2d 284, 286 [Sup Ct, Monroe County], affd 262 AD2d 1007). We have considered and rejected defendants’ other arguments. Concur — Andrias, J.P., Saxe, Buckley, Rosenberger and Marlow, JJ.