Goodleaf v. Tzivos Hashem, Inc.

Dec 8, 2009
Versions:68 A.D.3d 817
889 N.Y.S.2d 478
889 N.Y.2d 478

The Supreme Court properly granted the motion of the third-party defendant Arnold Steel Company (hereinafter Arnold) for summary judgment dismissing the third-party complaint insofar as asserted against it. In response to Arnold‘s prima facie showing that the plaintiff did not sustain a “grave injury” as defined by Workers’ Compensation Law § 11, the appellant failed to raise a triable issue of fact (see Rubeis v Aqua Club, Inc., 3 NY3d 408 [2004]; DePaola v Albany Med. Coll., 40 AD3d 678 [2007]; O‘Berg v MacManus Group, Inc., 33 AD3d 599 [2006]; Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487, 487-488 [2001]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The Supreme Court providently exercised its discretion in denying that branch of the appellant‘s cross motion which was for leave to amend the third-party complaint to add a cause of action for contractual indemnification against Arnold, since the proposed amendment was patently devoid of merit (see MacKenzie v Croce, 54 AD3d 825, 826 [2008]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]).

The appellant‘s remaining contentions are not properly before this Court. Covello, J.P., Santucci, Chambers and Hall, JJ., concur.