| Johnson v UniFirst Corp. |
| 2009 NY Slip Op 08406 [67 AD3d 1442] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| William Johnson, Plaintiff, v UniFirst Corporation, Defendant andThird-Party Plaintiff-Respondent. Derrick Corporation, Third-PartyDefendant-Appellant. |
—[*1] Damon Morey LLP, Buffalo (Michael L. Amodeo of counsel), for third-partyplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), enteredMarch 6, 2009 in a personal injury action. The order denied the motion of third-party defendantfor summary judgment dismissing the third-party complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the third-party complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen, during the course of his employment as a welder for third-party defendant, DerrickCorporation (Derrick), the uniform he was wearing caught fire. The uniform was rented byDerrick from defendant-third-party plaintiff, UniFirst Corporation (UniFirst), which commencedthe third-party action against Derrick seeking contractual indemnification.
Supreme Court erred in denying Derrick's motion for summary judgment dismissing thethird-party complaint. Pursuant to Workers' Compensation Law § 11, a third-party actionfor indemnification against an employer for injuries sustained by its employee in a work-relatedaccident is barred unless the employee sustains a grave injury or the claim for indemnification is"based upon a provision in a written contract entered into prior to the accident or occurrence bywhich the employer had expressly agreed to contribution to or indemnification of the. . . person asserting the cause of [*2]action for thetype of loss suffered" (see Rodrigues vN & S Bldg. Contrs., Inc., 5 NY3d 427, 430 [2005]). It is undisputed that plaintiff didnot sustain a grave injury within the meaning of the statute, and Derrick established as a matterof law that its written contract with UniFirst containing the indemnification provision hadexpired and thus was not in effect at the time of plaintiff's accident (see LaFleur v MLB Indus., Inc., 52AD3d 1087, 1088 [2008]; Guijarro v V.R.H. Constr. Corp., 290 AD2d 485, 486[2002]).
UniFirst may not rely upon the automatic renewal provision of the written contract, i.e., theCustomer Service Agreement, because UniFirst did not comply with its statutory obligation toprovide timely written notice to Derrick "calling [its] attention" to that provision (GeneralObligations Law § 5-903 [2]; see NYDIC/Westchester Mobile MRI Assoc. vLawrence Hosp., 242 AD2d 686, 688 [1997], lv denied 91 NY2d 807 [1998]). Wereject the further contention of UniFirst that General Obligations Law § 5-903 (2) does notapply herein. The customer service agreement, which provides that UniFirst must clean, inspect,repair and deliver uniforms to Derrick, in fact constitutes an agreement for "service, maintenanceor repair to or for . . . personal property" within the meaning of the statute, thusrendering applicable the notice of renewal provision (id.; see NYDIC/WestchesterMobile MRI Assoc., 242 AD2d at 687; Telephone Secretarial Serv. v Sherman, 28AD2d 1010, 1011 [1967]). Contrary to the further contention of UniFirst, Derrick did not waiveits statutory right to timely written notice based on its course of dealing with UniFirst. Were weto allow Derrick to waive the benefit of the statute through its course of dealing, we wouldeffectively "nullify the only purpose of [General Obligations Law § 5-903 (2)], which is torender such [automatic renewal provisions unenforceable] unless the statutory notice is given"(Boyd H. Wood Co. v Horgan, 291 NY 422, 425 [1943]). Present—Scudder, P.J.,Centra, Fahey, Green and Gorski, JJ.