McGlinchey v. Vassar College

88 A.D.3d 626, 931 N.Y.2d 503

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 2011
• Status: Published

Opinion

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.