The following papers numbered 1 to12 read on this motion for an order pursuant to CPLR 3212 granting summary judgment and dismissal of the third-party complaint.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition - Affidavits-Exhibits....................5 - 9

Reply Affirmation...................................................................10 - 12

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Third-party defendant Bass Plumbing & Heating Corp. ("Bass Plumbing") moves for an order pursuant to CPLR §3212 granting summary judgment to dismiss the third-party complaint.

This is an action for personal injuries that Robert Murphy ("Murphy") allegedly sustained as a result of an accident, occurring on March 13, 2008, at approximately 10:30 A.M., on a stairwell landing located at 128 Newton Street, Brooklyn, New York. At the time of the accident, construction/renovation was taking place at these premises. Murphy was descending an A-frame ladder when the third step allegedly broke causing him to fall to the ground. Murphy alleged injuries include injuries to his shoulders, lower back, and clavicle.

Murphy was employed by Bass Plumbing from 2001 until March 13, 2008. On the date of the alleged accident, Murphy was working as a mechanic for Bass Plumbing on a project involving new construction at the premises located on 128 Newton Street, Brooklyn, New York. He began working at this location approximately three weeks before his alleged accident, and, more specifically, began working on the premises of 128 Newton Street a few days prior to the alleged accident.

At the time of the alleged accident, Murphy was working on gas piping for the boiler with his foreman, Roman Lazevnik ("Roman"). Murphy testified at his deposition that the lines of the pipes that he was instructed to hook up were located in a crawl space in the hallway at the top of the staircase between the eighth floor and the roof of the building; and the only way to gain access to the crawl space was by using a ladder. Murphy also testified at his deposition that "somebody from Tahoe" handed them an eight foot, A-frame, wooden ladder. He also testified that they began to use this ladder about a half hour prior to the alleged accident and that the ladder "seemed all right to [him]." Furthermore, Murphy testified that he leaned the ladder against the wall on an angle, but did not open it because there was not enough room on the staircase's landing, which was approximately three feet by three feet. He also testified that his foreman went up the ladder first and then he followed. Murphy testified that they proceeded to work for approximately fifteen minutes until his foreman descended the ladder to cut a piece of pipe; and approximately five to ten minutes later, Murphy climbed down the ladder. According to Murphy, he went down about two or three steps, heard a snapping sound, then one of the wood prongs broke, and he fell down the ladder. He testified that he fell from just below the roof level to the eighth floor landing, which was approximately thirty steps. According to Anthony Gurino ("Gurino"), president of Tahoe Development Corporation ("Tahoe") and 50% owner of 126 Newton St. LLC ("126 Newton LLC"), the distance between the landing on the eighth floor and the ceiling was eight feet. Murphy was then taken to the emergency room to be treated.

126 Newton LLC owned the premises located at 128 Newton Street, Brooklyn, New York. Tahoe are developers of commercial and residential property and were the general contractors for this project pursuant to contract. In addition, Tahoe retained subcontractors for this project. Bass Plumbing, which is a plumbing, sprinkler, and heating company, was one of the sub-contractors assigned on this project. Bass Plumbing was to supply all the roughing, gas fixtures for the building, sprinklers, and fire system and to do the plumbing and sprinkler work, including performing gas piping.

Gurino testified that he, Jack Korn ("Korn"), who was a principal and 50% owner of 126 Newton LLC, and John Orati ("Orati"), who was the Superintendant, were responsible for the safety on this project. Gurino testified at his deposition that the ladder was already broken, the clean up guys had put the ladder in the middle of the floor, and the clean up guys disposed of the ladder after the alleged accident occurred. Furthermore, Gurino testified that the plumber removed the ladder [*3]from the garbage, while, Korn testified that Tony, a Tahoe laborer, stated that the plumbers used the ladder from the garbage. It is known that Orati and Gurino were not present at the location when Murphy's alleged accident occurred. However, it is not known whether Korn or the clean up guys were present at the time of the alleged accident. Normally, according to Gurino, Orati, Korn, him, and two clean-up guys were at the site on a regular basis.

Enrico Iervolino ("Iervolino") was an employee of Bass Plumbing and the head supervisor of this project, while Nate Pugoli ("Pugoli) was the project's supervisor. Ierovolino testified that he received a phone call that Murphy had fallen off a ladder and that the ladder broke while Murphy was working on the sprinkler pipes. Iervolino also testified that the ladder that Murphy had been using at the time of alleged accident was not Bass Plumbing's ladder. Furthermore, Iervolino testified that Bass Plumbing did not use wooden ladders, but instead, Bass Plumbing used fiberglass ladders painted blue and labeled with Bass's name. In addition, Murphy testified that Bass ladders said "Bass" on them to indicate that the ladders belonged to Bass, that these ladders were constructed of aluminum or fiberglass, and that they were yellow and blue in color. Furthermore, Iervolino testified that the day following the alleged accident, Pugoli told him that Murphy fell off the ladder, that the ladder broke, that the ladder was one of Gurino's ladders, and that the ladder had been on the job site.

Bass Plumbing's motion for summary judgment is granted in part and denied in part as more fully set forth below.

Third-party defendant Bass Plumbing argues that the indemnity agreement between Tahoe and Bass Plumbing is unenforceable in violation of GOL §5-322.1 because the agreement purports to allow Bass Plumbing to indemnify Tahoe for Tahoe's own negligence. In opposition, third-party plaintiff/defendant Tahoe asserts that the indemnity agreement is valid under GOL §5-322.1 since it purports to indemnify an indemnitee for its own negligent to the fullest extent permitted by the law. Bass Plumbing also argues that, even if the indemnity agreement is enforceable, there is no evidence that supports any finding of negligence on the part of Bass Plumbing, and the claim for contractual indemnification fails since indemnification is limited to the Bass Plumbing's negligence under the indemnity agreement. In opposition, Tahoe argues that Bass Plumbing's motion for summary judgment should be dismissed with regards to contractual indemnification claim because there are material issues of fact as to whether Bass Plumbing's employees were negligent.

GOL §5-322.1 provides, in pertinent part, that: [*4]

1. A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable; provided that this section shall not affect the validity of any insurance contract, workers' compensation agreement or other agreement issued by an admitted insurer. This subdivision shall not preclude a promisee requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of a party other than the promisee, whether or not the promisor is partially negligent.

"[T]he Legislature enacted General Obligations Law §5-322.1 in order to prevent a prevalent practice in the construction industry requiring subcontractors to assume liability by contract for the negligence of others'." (Brooks v. Judlau Contracting, Inc., 11 NY3d 204, 209 [2008], quoting Itri Brick & Concrete Corp. v. Aetna Casualty & Surety Co., 89 NY2d 786, 794 [1997].) "Although an indemnification agreement that purports to indemnify a party for its own negligence is void under General Obligations Law §5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification to the fullest extent permitted by law'." (Lesisz v. Salvation Army, 40 AD3d 1050, 1051 [2d Dept 2007]; see also Brooks, 11 NY3d at 210; Balladares v. Southgate Owners Corp., 40 AD3d 667, 670 [2d Dept 2007]; Cabrera v. Board of Education of City of New York, 33 AD3d 641, 643 [2d Dept 2006]; Bink v. F.C. Queens Place Associates, LLC, 27 AD3d 408, 409 [2d Dept 2006].)

Here, the indemnity agreement, dated September 18, 2006, between Tahoe, the general contractor, and Bass Plumbing, the subcontractor, contains an indemnification provision in Article 1.0, which provides, in pertinent part, that:

To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner and/or Contractor and employee of either of them from and against claims, damages, losses and expenses . . . arising out of or resulting from performance of the Subcontractor's Work, provided that such claim, damage, loss or expense is attributable to bodily injury . . . cause in whole or in part by negligent acts or omissions of the Subcontractor, . . . anyone directly or indirectly employed by them . . ., regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.

Thus, because this indemnity agreement contains the necessary language "[t]o the fullest extent permitted by the law," the indemnity agreement between Tahoe and Bass Plumbing is enforceable and does not violate GOL §5-322.1.

Furthermore, the Court of Appeals of New York held in Brooks v. Judlau Contracting, Inc. that "there is no language within General Obligations Law §5-322.1 that prevents partial indemnification provisions . . . from being enforced in a case where it is shown that both a general contractor and its subcontractor are joint tortfeasors." (Brooks, 11 NY3d at 210—11.) The question here is whether Bass Plumbing and Tahoe were both negligent in their actions causing plaintiff's [*5]alleged injuries. Bass Plumbing's argues that there is no competent evidence supporting any finding that Bass Plumbing was negligent; while Tahoe asserts that there is evidence that Bass Plumbing was negligent. In fact, there are issues of material fact here when with regards to whether plaintiff was negligent in his use of the wooden, A-frame ladder.

The first issue of fact is whether plaintiff knew that the ladder was defective before he used the ladder or whether the ladder became defective while plaintiff was descending from it. According to plaintiff, he had checked the ladder and it seemed all right to him. According to Tahoe, the ladder was already broken and the clean up guys had put it in the middle of the floor with the garbage. In addition, Tahoe noted that plaintiff admitted in his deposition testimony that the normal procedure is to check a ladder before using it to make sure that it contained a metal hinge bracing the two pieces of the ladder, and to make sure that each of the ladder's feet contained a flat piece of rubber or plastic. Tahoe argues that plaintiff had full knowledge of the elements of a properly constructed A-frame ladder. (See Murphy Deposition, Exhibit H, p 44, lines 20 through 46.) Furthermore, plaintiff testified that there was no rubber or plastic feet on the wooden A-frame ladder that he used, instead, the ladder was just wood.(Id. p. 57, lines 15 through 21.) According to plaintiff's testimony, the wooden A-frame ladder used was technically not a proper ladder because it was missing the rubber or plastic feet. An issue of material fact exists as to whether plaintiff knew that the ladder was defective before he used it or whether the ladder became defective while plaintiff was using it.

The second issue is whether plaintiff removed the ladder from the garbage or whether one of Tahoe's employees provided plaintiff with the ladder. According to plaintiff, "somebody from Tahoe" handed them an eight foot, A-frame, wooden ladder. Tahoe asserts that the ladder was already broken, the clean up guys had put the ladder in the middle of the floor with the garbage, and that the plumber (plaintiff) removed the ladder from the garbage. If Tahoe's assertion are proven, then plaintiff may be negligent in his use of a known defective ladder. However, given the contradictory proof as to whether plaintiff removed the ladder himself or whether the ladder was provided to him by Tahoe's employee, the summary judgment cannot be granted.

The last issue of fact is whether plaintiff failed to use the available safe ladders provided by his employer, Bass Plumbing, and as a result, plaintiff's negligence contributed to his alleged accident. Plaintiff testified that there were ladders provided by Bass Plumbing on this project as well as ladders provided and owned by Tahoe. Plaintiff also testified that normally the ladders from Bass Plumbing were labeled with "Bass," were blue and yellow in color, and were constructed of aluminum or fiberglass, not wood. According to Iervolino, who testified on behalf of Bass Plumbing, Bass Plumbing provided its ladders on the job site. Thus, Bass Plumbing ladders were available to plaintiff on the job site. In addition, Iervolino testified that Bass Plumbing has a policy against using wood ladders, and, instead, Bass Plumbing only uses fiberglass ladders. Based on this testimony, plaintiff should have known not to use a wooden ladder, but instead, plaintiff used the wooden, A-frame ladder. There is a question of fact as to why plaintiff did not use the other available safe ladders, especially those provided by Bass Plumbing, and instead used a wooden, A-frame ladder, that would have been against Bass Plumbing's policy to do so.

Since summary judgment can only be granted when there are no issues of material facts to be resolved at trial, summary judgment cannot be granted here. (See Andre v. Pomeroy, 35 NY2d 361, 364 [1974].) Therefore, Bass Plumbing's motion for summary judgment to dismiss Tahoe's contractual indemnification claim is denied.

Workers' Compensation Law §11 provides, in pertinent part, that:

The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, . . . or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section 50 of this chapter, an injured employee . . . may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense . . . that the injury was due to the contributory negligence of the employee. . . .

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 physical force resulting in permanent total disability.

"Workers' Compensation Law §11 was amended in 1996 to permit an employer to be held liable for contribution or indemnity only where the third-party plaintiff proves through competent evidence that the injured party sustained a grave injury'." (Schuler v. Kings Plaza Shopping Center and Marina, 294 AD2d 556 [2d Dept 2002].) Additionally, " grave injury' has been defined as a statutorily defined threshold for catastrophic injuries,' and includes only those injuries which are listed in the statute and determined to be permanent"; this is an exhaustive list. (Ibarra v. Equipment Control, 268 AD2d 13, 17—18 [2d Dept 2000], quoting Kerr v. Black Clawson Co., 241 AD2d 686 [3d Dept 1997].) If a third party fails to prove a "grave injury" through medical evidence, then the claim for common law indemnification should be dismissed. (See generally, Fleming v. Graham, 10 NY3d 296 [2008]; Castro v. United Container Machinery Group, 96 NY2d 398 [2001].)

Plaintiff's alleged injuries consist of injuries to his shoulder, lower back, and clavicle resulting in four surgical procedures. According to plaintiff's deposition and Dr. Richard Schuster's report, plaintiff has limited use of his left arm. Additionally, according to the report made by Dr. Bosco, plaintiff's treating physician, plaintiff has a limited range of motion of his left shoulder. However, plaintiff's limited use of his left arm is not "a total loss of use to . . . [his] arm," within the meaning of "grave injury" as defined in Workers' Compensation Law §11. In essence, plaintiff did not suffer from a grave injury; and third-party plaintiff/defendant Tahoe cannot bring a common law [*7]indemnification claim against Bass Plumbing. Therefore, Bass Plumbing's motion for summary judgment to dismiss Tahoe's common law indemnification claim and contribution claims is granted.

However, a letter from Harleysville, dated September 4, 2009, to Tahoe's claims representative, states that Tahoe was denied additional insured coverage because Tahoe was not specifically listed on Harleysville's declarations as having insured or additional insured status as a result of Tahoe's late notice of the claim. According to the general conditions of the policy, prompt notification of an occurrence that may result in a claim is required. This loss occurred on March 13, 2008, but, Harleysville received its first notice on behalf of Tahoe in a letter dated August 5, 2009, meanwhile the underlying action had been filed on or about October 2008. Harleysville found the request to be untimely and denied Tahoe's request. In essence, Tahoe was not eligible for additional insured status as a result of being untimely in requesting for such status, not because Bass Plumbing failure to procure insurance. Therefore, Bass Plumbing's motion for summary judgment to dismiss Tahoe's claim for failure to procure insurance is granted since Bass Plumbing, in fact, secured insurance.

For the reasons set forth above, Bass Plumbing's motion for an order pursuant to CPLR §3212 granting summary judgment to dismiss the third-party complaint with regards to Tahoe's contractual indemnification claim is denied; with regards to Tahoe's common law indemnification or contribution claim is granted; and with regards to Tahoe's claim for failure to procure insurance is granted.

This constitutes the decisions and order of this court.

Dated: June 21 , 2012 ____________________

Bernice D. Siegal, J. S. C.