Plaintiff in this negligence/labor law action seeks damages for personal injuries sustained on October 18, 2007, at 415 Greenwich Street, New York, NY (premises). The complaint alleges that plaintiff was caused to trip and fall when he stepped into a hole on the roof of the premises. The premises are owned by 415 Greenwich, a real estate development company formed to develop the premises. The premises is a warehouse which was in the process of being converted to residential condominiums with a commercial space on the ground level. 415 Greenwich contracted with J. Stern to serve as construction manager for the subject construction project. In or about July, 2006, Allied was hired to install a new roof at the premises. Allied hired Ultrex to perform the roofing work. At the time of the accident, plaintiff was working as a laborer for Ultrex, and was carrying tools with another Ultrex employee in the section of the [*2]unfinished roof which contained contractors tools and equipment for the project, when he stepped into a concealed opening in the roof. Prior to the subject accident, Medco had performed digging and installation of drains on the roof of the premises and failed to install a drain cover over the holes or place any warning signs or barricades in the working area.

Plaintiff asserts causes of action for general negligence and Labor Law §200, 240 (1) and 241 (6). Defendants move to dismiss the complaint and fourth party complaint on various grounds. Plaintiff opposes the motions.

Motions by CPG/J Stern and Medco

The motions of CPG/J. Stern, are denied as untimely, without considering the merits of the motions. (CPLR 3212[a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Milano v George, 17 AD3d 644 [2005]). Pursuant to a Stipulation dated December 16, 2010, and So Ordered by Justice Sampson, summary judgment motions had to be made returnable by March 18, 2011. Defendants' motions, served by regular mail on March 16, 2011 and March 18, 2011, respectively, and both made returnable on April 14, 2011 are thus, untimely. (See, Milano v. George, supra.) Although defendants' motions are late, they neither moved for leave to make a late summary judgment motion nor submitted any explanation, much less one which constitutes "good cause" for their failure to timely move. ( Brill v City of New York, supra.). In the absence of a "good cause" showing, the court has no discretion to entertain even a meritorious non-prejudicial motion for summary judgment. ( Brill v City of New York, supra; Thompson v New York City Bd. of Educ., 10 AD3d 650[2004].). The court declines to consider the "good cause" excuse for the delay, made by CPG/J. Stern for the first time in their reply papers (see Kearns v Thilburg, 76 AD3d 705, 708 [2010]; Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825 [2009]). Accordingly, the motions by CPG/J. Stern and Medco are denied.

Motion by Ultrex

Plaintiff sues Allied alleging that he was injured while in the course of his employment with Ultrex. In the fourth party action, Allied seeks common law and contractual indemnification from Ultrex. By its motion, Ultrex seeks summary judgment in its favor dismissing the fourth party action. The motion is granted.

Workers' Compensation Law § 11, as amended by the Omnibus Workers' Compensation Reform Act of 1996 (L 1996, ch 635, § 2), prohibits most third-party claims for contribution or indemnification against an employer for injuries sustained by an employee acting within the scope of employment. There are two exceptions to this provision: the employer may be impleaded when (1) the employee has sustained a "grave injury" or (2) when there is a "written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant" (Workers' Compensation Law § 11). [*3]

The term "grave injury" as contained in Workers' Compensation Law § 11 has been described as a statutorily-defined threshold for catastrophic injuries, and it includes only those injuries listed in the statute and determined to be permanent (see Curran v Auto Lab Serv. Ctr., 280 AD2d 636 [2001]; Kerr v Black Clawson Co., 241 AD2d 686 [1997]). The statutory list of grave injuries is intended to be exhaustive, not illustrative (see Curran v Auto Lab Serv. Ctr., supra ). Here, the record reveals that plaintiff sustained a torn meniscus and suffers lower back pain as a result of the subject accident. Ultrex met its burden of proving by competent admissible evidence (see Gaddy v Eyler, 79 NY2d 955 [1992]; Licari v Elliott, 57 NY2d 230 [1982] ), that plaintiff's injuries, although clearly serious, did not rise to the level of "grave" injuries within the meaning of Workers' Compensation Law § 11 ( see, Curran v. Auto Lab Serv. Ctr., supra).

Additionally, Workers' Compensation Law § 11 bars a third-party action for contribution or indemnification against an employer whose employee is injured in a work-related accident, except for a claim based upon the existence of "a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered" (Workers' Compensation Law § 11; see Baginski v Queen Grand Realty, LLC, 68 AD3d 905 [2009]; see also Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427 [2005]). Workers' Compensation Law § 11 "explicitly and unequivocally requires that any contract for indemnification be written and entered into prior to the accident or occurrence" (Ferri v 63 Madison Assocs., L.P., 280 AD2d 419, 420 [2001]; see Guijarro v V.R.H. Constr. Corp., 290 AD2d 485 [2002]). Here, Ultrex met its prima facie burden on its motion for summary judgment by submitting admissible evidence establishing that it had not entered into a written contract prior to the accident ( see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition, Allied argues that Ultrex's motion should be denied because even if there is no valid written contract, an "oral promise to pay for the debt of another is enforceable" where Ultrex's conduct indicates "the indemnity obligation has been accepted" (i.e. assent by conduct). First, at no point did Ultrex concede that there was an "oral promise to indemnify" as suggested by Allied. To the contrary, Daniel Stubbolo of Ultrex affirmatively stated that there was no contract (written or otherwise) between Allied and Ultrex for the work performed at the 415 Project. Moreover, even assuming arguendo, that there was an oral contract or evidence to establish "assent to indemnify by conduct", it is insufficient to circumvent the rigid requirements of New York Workers' Compensation Law §11.

Workers' Compensation Law § 11 permits a third-party indemnification claim against the employer only where such claim is "based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to . . . indemnification of the claimant or person asserting the cause of action for the type of loss suffered" (emphasis added). Here, there is clearly no such written agreement between Ultrex and defendant Allied whereby Ultrex expressly agreed to indemnify defendant Allied.

Rather, Allied argues that the agreement to indemnify was oral and exemplified by the parties' [*4]conduct. Whether an oral agreement could be presumed as a consequence of the conduct between the parties is simply irrelevant to our analysis under Workers' Compensation Law § 11. Had the Legislature intended that an oral agreement—or anything less than the employer'sexpress written agreement—to indemnify would suffice, it could have easily done so by omitting the word "expressly" prior to the word "agreed." The Legislature chose to use that language, however, and the court must adhere to the literal terms of the statute in so interpreting it (see Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d at 367; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Indeed, as the relevant portions of Workers' Compensation Law § 11 were enacted to abrogate employers' liability to third parties for injury to their employees except in the most limited circumstances, the exception "[r]equiring the indemnification contract to be clear and express furthers the spirit of the legislation" (Tonking v Port Auth. of NY & N.J., 3 NY3d 486, 490 [2004] [emphasis added]). Thus, inasmuch as there is no writing whereby Ultrex expressly agreed to indemnify Allied, summary judgment dismissing Allied's contractual indemnification claim is awarded (see O'Berg v MacManus Group, Inc., 33 AD3d 599, 599-600 [2006]; Lipshultz v K & G Indus., 294 AD2d 338, 338-339 [2002]).

Finally, the court rejects Allied's claim that the existence of a certificate of insurance is evidence of an express written agreement to indemnify. It is well established that the agreement to purchase insurance coverage is clearly distinct from and treated differently from the agreement to indemnify (see, Kinney v Lisk Co., 76 NY2d 215 [1990]; McGill v Polytechnic Univ., 235 AD2d 400 [1997]; Mathew v Crow Constr. Co., 220 AD2d 490 [1995]).

Accordingly, the motion by Ultrex to dismiss the fourth party action which seeks common law and contractual indemnification from Ultrex, is granted.

Dated: November 16, 2011_____________________J.S.C.