| Goodleaf v Tzivos Hashem, Inc. |
| 2009 NY Slip Op 09188 [68 AD3d 817] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Mark Goodleaf, Respondent, v Tzivos Hashem, Inc.,Defendant and Third-Party Plaintiff-Appellant, and H & H Builders, Inc., Respondent. ArnoldSteel Company, Third-Party Defendant-Respondent, et al., Third-Party Defendant. (And aSecond Third-Party Action.) |
—[*1] Epstein Harms & McDonald, New York, N.Y. (Kenneth E. Pinczower of counsel), fordefendant-respondent. Harrington, Ocko & Monk, LLP, White Plains, N.Y. (I. Paul Howansky of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the defendant third-party plaintiffTzivos Hashem, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Starkey, J.), dated April 14, 2008, as granted the motion of the third-partydefendant Arnold Steel Company for summary judgment dismissing the third-party complaintinsofar as asserted against it, denied that branch of its cross motion which was for leave toamend its third-party complaint to add a cause of action for contractual indemnification againstArnold Steel Company, and, in effect, granted that branch of the motion of the defendant H & HBuilders, Inc., which was for leave to amend its answer to assert a cross claim to recoverdamages for breach of contract against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The Supreme Court properly granted the motion of the third-party defendant Arnold SteelCompany (hereinafter Arnold) for summary judgment dismissing the third-party complaintinsofar as asserted against it. In response to Arnold's prime facie showing that the plaintiff didnot sustain a "grave injury" as defined by Workers' Compensation Law § 11, the appellantfailed to raise a triable issue of fact (seeRubeis v Aqua Club, Inc., 3 NY3d 408 [2004]; DePaola v Albany Med. Coll., 40 AD3d 678 [2007]; O'Berg v MacManus Group, Inc., 33AD3d 599 [2006]; Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487, 487-488[2001]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).[*2]
The Supreme Court providently exercised its discretionin denying that branch of the appellant's cross motion which was for leave to amend thethird-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. [Prior Case History: 19 Misc 3d 1104(A), 2008NY Slip Op 50555(U).]