| Cueto v Hamilton Plaza Co., Inc. |
| 2009 NY Slip Op 08171 [67 AD3d 722] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Victor Cueto, Plaintiff, v Hamilton Plaza Company, Inc.,et al., Defendants, and Reckson Construction and Development, LLC, Defendant andThird-Party Plaintiff-Respondent, et al., Third-Party Defendant. Special Trades Contracting andConstruction Trust, Nonparty Appellant. |
—[*1] Traub, Lieberman, Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Jerri A. DeCamp andRobert M. Leff of counsel), for defendant and third-party plaintiff-respondent. Enoch Brady & Associates (Anita Nissan Yehuda, P.C., Roslyn Heights, N.Y. of counsel),for plaintiff.
In an action to recover damages for personal injuries, and a related third-party action, thenonparty Special Trades Contracting and Construction Trust, care of New York CompensationManagers third-party administrator for Workers' Compensation for Arkay Contracting, appealsfrom an order of the Supreme Court, Westchester County (Smith, J.), dated August 25, 2008,which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action inthe third-party complaint for common-law indemnification and contribution for failure to state acause of action.
Ordered that the order is affirmed, with one bill of costs to the defendant third-partyplaintiff-respondent.
On October 18, 2004 the plaintiff Victor Cueto, a construction worker, allegedly was injuredwhen a portion of a ceiling fell on him at a construction project in White Plains. After the [*2]plaintiff's workers' compensation claim against his employer ArkayContracting (hereinafter Arkay) was settled, the plaintiff commenced an action to recoverdamages for personal injuries against various owners, managers, contractors, and subcontractorson the construction project. The defendant Reckson Construction and Development, LLC(hereinafter Reckson), commenced a third-party action against Arkay, inter alia, forcommon-law indemnification and contribution. Special Trades Contracting and ConstructionTrust, care of New York Compensation Managers third-party administrator for Workers'Compensation for Arkay Contracting (hereinafter Special Trades), the workers' compensationbenefits administrator for Arkay, moved pursuant to CPLR 3211 (a) (7) to dismiss the cause ofaction in the third-party complaint for common-law indemnification and contribution. In supportof the motion, Special Trades asserted that the third-party complaint failed to sufficiently allegethat Cueto had suffered a "grave injury" and that, therefore, section 11 of the Workers'Compensation Law barred Reckson's claim for common-law indemnification and contribution.The Supreme Court denied the motion, and we affirm.
In deciding a motion to dismiss for failure to state a cause of action under CPLR 3211 (a)(7), "the court must afford the pleading a liberal construction, accept all facts as alleged in thepleading to be true, [and] accord the plaintiff the benefit of every possible inference" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; East Hampton Union Free School Dist. vSandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009]; Smith v Meridian Tech., Inc., 52 AD3d 685, 686 [2008]). Section11 of the Workers' Compensation Law provides, in relevant part: "An employer shall not beliable for contribution or indemnity to any third person based upon liability for injuries sustainedby an employee acting within the scope of his or her employment for such employer unless suchthird person proves through competent medical evidence that such employee has sustained a'grave injury' which shall mean only one or more of the following: . . . an acquiredinjury to the brain caused by an external physical force resulting in permanent total disability."In Rubeis v Aqua Club, Inc. (3NY3d 408, 413 [2004]), the Court of Appeals held that "permanent total disability" requiresa showing that a worker "is no longer employable in any capacity" (see Chelli v Banle Assoc., LLC, 22AD3d 781, 783 [2005]). Here, the third-party complaint alleged that the injuries alleged byCueto in his complaint and bill of particulars would, if proven, constitute a "grave injury" asdefined by Workers' Compensation Law § 11. In affording the allegations in the complaintand bill of particulars the required liberal construction as required (see Breytman v OlinvilleRealty, LLC, 54 AD3d at 703), we find that they sufficiently alleged that Cueto suffered a"grave injury," and, consequently, that the Supreme Court properly denied Special Trades'smotion pursuant to CPLR 3211 (a) (7) to dismiss the cause of action in the third-party complaintfor common-law indemnification and contribution (see Wilt v Brunswick Plaza, 281AD2d 840, 841 [2001]).
The parties' remaining contentions are without merit. Mastro, J.P., Fisher, Angiolillo andLeventhal, JJ., concur.