On Appeal, Amy Fenno & Krupa Shah Have Contractual Indemnification and Common Law Indemnification Claims Dismissed Against Plaintiff’s Employer, Tiegre Mechanical Corp.

Plaintiff Alvaro Anton commenced a personal injury action under New York Labor Law due to a construction site accident at 102 Bradhurst Avenue, New York, New York, on May 18, 2006, wherein he was struck by a falling cinder block while working for his employer, Tiegre Mechanical Corp. (hereinafter "Tiegre").

Due to the Workers' Compensation bar, Plaintiff could not directly sue his employer, Tiegre. However, Defendant/Construction Manager West Manor, Masonry Subcontractor Contractor Larino, and premises owner Bradhurst commenced a third-party action against Tiegre for contractual indemnification, common law indemnification, and breach of contract for failure to procure insurance.

On summary judgment, the lower court dismissed the Third-Party Plaintiffs' claims for contractual indemnification and failure to procure insurance. However, the Court denied Tiegre's motion for summary judgment dismissal of the Third-Party Plaintiffs' claims for common law indemnification and contribution, by holding that there was an issue of fact as to whether Plaintiff sustained a "grave injury" as defined by Workers' Compensation Law § 11, and, further, on the basis that there was an issue of fact regarding Tiegre's negligence because "Tiegre had a deposition outstanding."

On appeal, Partner Amy Fenno and Associate Krupa Shah successfully argued that the lower Court correctly granted summary judgment on contractual indemnification but erred in failing to grant it as to common law indemnification because there was no factual dispute that Tiegre did not commit any negligent act responsible for Mr. Anton's accident; there was substantial evidence in the record of Third-Party Plaintiffs West Manor and Larino's active negligence, and that the record had no evidence whatsoever suggesting that Plaintiff sustained a grave injury, specifically a traumatic brain injury.

With this favorable decision, O'CONNOR REDD LLP was able to summarily dismiss all claims against insured, Tiegre Mechanical Corp.