Third-party defendant, NEAD ELECTRIC,INC. (hereinafter referred to as "NEAD"), moves for an order, pursuant to CPLR §3211(a)(2)(5) and (7) and §3212, granting summary judgment in favor of NEAD and dismissing all claims by all adverse parties against NEAD. An Affidavit of Service reflects that counsel for all parties in the main and third-party action were served with the instant motion, on February 6, 2008, but only third party plaintiffs, BDS DEVELOPERS, LLC (hereinafter referred to as "BDS") and PAVARANI MCGOVERN, LLC. i/s/h/a PAVARANI MCGOVERN (hereinafter referred to as "PAVARANI MCGOVERN"), oppose the motion which is determined as follows:

This action for personal injuries sustained by plaintiff, MICHAEL AMANIERA, an employee of NEAD, was commenced by the filing of a summons and complaint on or about March 12, 2007, and alleged that, on August 19, 2006, he was injured while in the scope of his employment, and that the primary defendants, BDS, the owner of the property located at 545 West 110th Street, New York, New York, and PAVARANI MCGOVERN, the general contractor, were negligent in their ownership, operation, maintenance and control of the work place, and that they were jointly and severally liable to the plaintiff under theories of common-law negligence and for violations of various provisions of the New York State Labor Law. [*2]

Issue was joined on or about April 11, 2007, with service of the answer by said defendants, who generally denied all allegations of negligence made against them, and a third-party action was commenced against third- party defendants, S.J. ELECTRIC, INC. (hereinafter referred to as "SJ") and NEAD, on or about May 8, 2007. Therein, it was alleged that SJ was retained by BDS and PAVARANI MCGOVERN to perform electrical services, work and labor at the job site pursuant to contract, and that SJ subcontracted out all or part of its work to NEAD pursuant to contract or agreement. It is further alleged that SJ and NEAD supervised, directed and controlled plaintiff in the performance of his work at the job site, and that, if plaintiff was injured during his employment, it was the result of the negligent supervision and control of the plaintiff by SJ and NEAD, and in failing to safeguard the work as required under contract and law.

Counsel for NEAD points out that the third-party complaint states a claim for contribution and indemnification against SJ and NEAD. Specifically, BDS and PAVARINI MCGOVERN refer to an agreement that they entered into with SJ, and allege that SJ agreed to hold the third-party plaintiffs harmless for any damages suffered by them arising out of the litigation. With respect to NEAD, third-party plaintiffs also allege claims for contribution and breach of contract. Counsel for NEAD contends that no reference is made to any agreement between third-party plaintiff's and NEAD, as none exists.

In support of the motion to dismiss, counsel for NEAD recites several affirmative defenses raised in the third-party answer that the application of Workers' Compensation Law of the State of New York bars the third-party action(¶29) and the absence of any contractual relationship between defendants/third-party plaintiffs and NEAD preempts any finding of contractual liability on the part of NEAD (¶30). Counsel for NEAD argues that summary judgment is mandated as against NEAD, as a matter of law, because (1)plaintiff has not suffered a "grave injury" as defined in §11 of the Workers' Compensation Law (WCL), and (2) there is no contractual relationship between any other party and NEAD in which NEAD, the plaintiff's employer, expressly agreed to indemnify another party. Counsel asserts that, while plaintiff's injuries may considered serious by some, they do not rise to the level of "grave" as enumerated and defined in WCL §11. Furthermore, he establishes that the only agreement under which NEAD was operating on the project was with its prime contractor, SJ, in the form of a purchase order (Exhibit "H"). Counsel states that said document is single sided, without terms or conditions, and only sets forth the scope of the work and the agreed price. Counsel for NEAD contends that said document does not create any obligation on the part of NEAD to defend or indemnify any other party to the litigation, nor does it confer upon NEAD the obligation to obtain insurance coverage for any other party. Counsel for NEAD argues that an action against any employer can be maintained only if, in a written contract entered into prior to the accident, the employer had expressly agreed to contribution or indemnification of the party making the claim, citing WCL §11 and Wisniewski v Kings Plaza Shopping Center of Flatbush Avenue Inc., 279 AD2d 570, 719 NYS2d 294 (2nd Dept. 2001), which holds that a claim for indemnification based on an agreement that does not contemplate or provide for such indemnity will fail as a matter of law. Counsel for NEAD concludes that, in the absence of a written agreement wherein the employer had expressly agreed to contribution of indemnification of the claimant or person who brings the claim, no cause of action can be maintained citing 405 Bedford Avenue Development Corp. v New Metro Construction Ltd., 26 AD3d 408, 809 NYS2d 552 (2nd Dept. 2006). [*3]

In opposition to the motion, counsel for defendants/third party plaintiffs, SJ and PAVARINI MCGOVERN (hereinafter referred to as third-party plaintiffs"), states that discovery has not been completed and that the motion should be denied as premature, citing CPLR §3212(f) which holds that facts essential to justify opposition to the motion may exist but cannot then be stated. Moreover, counsel for third-party plaintiffs points to the contract between PAVARANI MCGOVERN and SJ, #

030002-013 of May 24, 2005, specifically Exhibit E, Article 9, which provides that

. . .each Trade Contractor shall indemnify, defend, save and hold the Owner, Owner lender(s) and Construction Manager. . . harmless from and against all liability, damage, loss, claims, demands and actions of any nature... connected with 1. The performance of work by the Trade Contractor, or any act or omission of Trade Contractor; 2) Any accident or occurrence which happens, or is alleged to have happened, in or about the place where such work is being performed or in the vicinity thereof (a) while the Trade Contractor is performing the work either directly or indirectly through a sub-contractor...

WCL §11, in pertinent part, prescribes, as follows:

An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external force resulting in permanent and total disability.

The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 [C.A. 1986]). When faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626, 620 NYS2d 500 [2nd Dept. 1995]). The burden on the moving party seeking summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 [C.A. 1993]). Once movant has made a prima facie showing that they are entitled to judgment as a matter of law, the other party must establish the existence of material facts of sufficient import to create a triable issue of fact. See, Hellyer v Law Capitol 124 AD2d 782, 508 NYS2d 501 (2nd Dept. 1986); Shaw v Time-Life Records, 38 NY2d 201, 379 NYS2d 390, 341 NE2d 817 (C.A. 1975). The proof submitted in opposition to a motion for summary judgment must be genuine, bonafide and non-conclusory. Rotuba Extruders Inc. v Ceppos, 46 NY2d 233, 413 NYS2d 141, 385 NE2d 1068 (C.A. 1978).

After a careful reading of the submissions herein, the Court finds that counsel for NEAD has established its prima facie right to summary judgment. The burden therefore shifts to third-party plaintiffs to come forward with admissible evidence to establish the existence of a material fact. Third-party plaintiffs have not met their burden. The Court notes that third-party plaintiffs have not even addressed movant's claim that plaintiff has not suffered a "grave injury" and, in essence, concede said point which eliminates one (1) basis for holding NEAD liable. Moreover, the Court finds that third-party plaintiffs have failed to establish a basis for a third-party claim based on contractual indemnity and have submitted insufficient evidence to raise a question of fact to defeat the motion for summary judgment.

In a response to third-party defendant's request for a third-party bill of particulars, BDS and PAVARINI MCGOVERN represented that the only contract to which it was a party was the above mentioned trade contract with SJ. Third-party plaintiffs have offered no evidence to suggest that other contracts exist that may lead to relevant evidence to establish that NEAD expressly agreed to indemnify the others. Summary judgment is not premature when the party opposing summary judgment fails to demonstrate an evidentiary basis to suggest that additional disclosure may lead to relevant evidence. Ruttura and Sons Construction v Petrocelli Construction, 257 AD2d 614, 684 NYS2d 286 (2nd Dept. 1999); Town of Hempstead v Incorporated Village of Atlantic Beach, 278 AD2d 308, 718 NYS2d 360 (2nd Dept. 2000). "A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination on the issue of summary judgment. Lambert v Bracco, 18 AD3d 619, 795 NYS2d 662 (2nd Dept. 2005). The Court rejects third-party plaintiffs' argument that third-party plaintiffs, by virtue of their trade contract with SJ, are beneficiaries of the purchase order agreement between the two (2) third party defendants, or that NEAD is somehow bound by the trade contract. Said argument is unsupportable as a matter of law. [*5]The Court credits the analysis of counsel for NEAD and finds that the purchase order is insufficient to establish an express agreement for indemnification. In Goncalves v 515 Park Avenue Condominium, 39 AD3d 262, 833 NYs2d 453 (1st Dept. 2007), the Appellate Division denied the indemnification claim of the general contractor against the sub-contractor (employer), in which the purchase order required the sub-contractor to "receive, distribute and install all work" and wrote:

. . . [W]e hold that this language does not incorporate the provisions of the trade subcontract relating to indemnification."[I]ncorporation clauses in a construction sub-contract, incorporating prime contract clauses by reference into a subcontractor, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character and manner of the work to be performed by the subcontractor". (see, Bussanich v. 310 E. 55th St. Tenants, 282 AD2d 243, 723 NYS2d 444 [2001]."

ORDERED, that third-party defendant, NEAD's motion for an order dismissing all claims by all adverse parties against NEAD is granted; and it is further

ORDERED, that the caption shall henceforth read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

_______________________________________

MICHAEL AMANIERA,Motion Sequence #

1

Plaintiff,Submitted April 4, 2008

-against-INDEX NO: 4351/07

BDS DEVELOPERS, LLC and PAVARINI

MCGOVERN,

Defendants.

BDS DEVELOPERS, LLC and PAVARINI

MCGOVERN, LLC i/s/h/a PAVARINI MCGOVERN,

Third-Party Plaintiffs,

-against-

S.J. ELECTRIC, INC.,

Third-Party Defendant.

and it is further

ORDERED, that the parties shall appear for a previously scheduled Compliance Conference [*6]before the undersigned on July 9, 2008 at 9:30 A.M.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: June 30, 2008

_________________________

William R. LaMarca, J.S.C.

TO:

amaniera-bds,mcgovern & bds-sjelectric,#

1/sumjudg