Upon the foregoing papers, the motion by third party defendant, USA Labor For Hire Inc. i/s/h/a Labor For Hire, Inc. (“Labor”) is decided as follows. Plaintiff, an employee of third-party defendant Labor, commenced this personal injury action for damages for injuries allegedly sustained in an elevator in the building owned and/or managed by defendant 237 West 54th Owner LLC (“237 West”). (On a prior motion, the action was dismissed as against defendant Hilton Garden Inns Management.) The elevators were maintained by the defendant Nobel Elevator Company, Inc. (“Nobel”). Labor provided cleaning services for the building pursuant to a written contract with the building owners. The building owners commenced a third-party action against Labor for contractual and common law indemnification. Plaintiff testified at his deposition that he was involved in an accident on June 29, 2016 while in the course of his employment with Labor while working at the Hilton Hotel located at 237 West 54th Street in New York County. He further testified that he took the elevator to the 23rd floor, the door did not open and the lights in the elevator went off. Then the elevator descended rapidly from the 23rd floor to the area below the lobby level, causing him to fall in the elevator. Plaintiff alleges injuries of his back and left knee. The records from Electrodiagnostics & Physical Medicine reflect nerve block injections for lumbar radiculopathy on January 13, 2017 and February 13, 2017. Plaintiff received epidural injections on November 28, 2016, January 6, 2017 and April 21, 2017. On March 24, 2017 he underwent a lumbar ablation. His medical records reflect plaintiff underwent a spinal cord stimulator trial lead implant under fluoroscopic guidance on April 9, 2018. On July 12, 2017 plaintiff underwent a lumbar at L2 through L4 for herniated pulposus with radiculopathy. With respect to medical supplies, plaintiff was prescribed a cane on September 9, 2016. In June of 2016 Dr. Capiola recommended crutches and an ankle brace. On September 1, 2016 Dr. Capiola prescribed a lumbar brace. On December 13, 2016 plaintiff underwent a left knee partial meniscectomy, synovectomy by Dr. Capiola with a diagnosis of left knee partial anterior cruciate ligament tear and lateral meniscal tear. Labor previously moved to dismiss all claims grounded on common law indemnification (as opposed to contractual indemnification), based on the absence of “grave injury” pursuant to Workers’ Compensation Law §11. This Court denied the underlying motion with leave to renew by decision dated January 22, 2021. This Court held, in relevant part, that there was a dispute as to which entity employed the plaintiff or whether that entity provided workers’ compensation insurance to the plaintiff for the subject occurrence. Labor now moves pursuant to CPLR 2212 renewing its motion for summary judgment, which seeks to dismiss 237 West’s third-party common law indemnification and common law contribution claims. In support of its motion, Labor submits a copy of the plaintiff’s workers’ compensation employer verification which shows that plaintiff was employed by Labor; a copy of the 2016 written contract between the defendants and Labor which shows Labor as the contractor which was in effect at the time of the occurrence; a copy of the plaintiff’s W-2 for 2015 and 2016 which reflects Labor is the plaintiff’s employer; a copy of the workers’ compensation lien letter dated April 24, 2020 issued by Wesco Insurance on behalf of its insured, Labor, for payments made to the plaintiff herein for the subject occurrence; a copy of the workers’ compensation policy for Labor covering the subject date of occurrence; and an affidavit from Melissa Brown, a claims adjuster on behalf of Amtrust of North America confirming that Wesco Insurance issued a workers’ compensation policy to Labor and that pursuant to the policy, Wesco Insurance has been paying the plaintiff’s workers’ compensation benefits. In opposition, defendants 237 West and Nobel argue that the movant, Labor, fails once again to meet the requirements of Workers’ Compensation Law §11 since its motion papers do not contain sufficient evidence or documents showing that plaintiff was an employee of Labor. They also argue that Labor’s summary judgment motion is premature as discovery has yet to be completed in this matter. “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.’ ” However, “ an employer may not benefit from section 11′s protections against third-party liability unless it first complies with section 10 and secures workers’ compensation for its employees” (Boles v. Dormer Giant, Inc., 4 NY3d 235, 239, 825 NE2d 590, 792 NYS2d 375 [2005]; see Sarmiento v. Klar Realty Corp., 35 AD3d 834, 829 NYS2d 134 [2d Dept. 2006]). Based on the documentary evidence and affidavit submitted, the third party defendant has established a prima facie showing that the plaintiff was an employee of the third party defendant, Labor, that Labor had a workers’ compensation policy with Wesco at the time of occurrence and that Labor’s workers’ compensation policy has been covering plaintiff’s medical treatment for the subject occurrence. Absent an express indemnification agreement, or a “grave injury” as enumerated in Workers’ Compensation Law §11, an employer’s liability for an employee’s on-the-job injury is ordinarily limited to workers’ compensation benefits (see Tonking v. Port Auth. Of NY & N.J., 3 NY3d 486, 490 [2004]). Where a “grave injury” results, a primary defendant may commence a third-party action against the injured plaintiff’s employer for common-law indemnification and/or contribution. Injuries qualifying as grave are narrowly defined in Workers’ Compensation Law §11. This Court finds that plaintiff’s injuries do not rise to the level of a “grave injury” as defined in §11 of the Workers’ Compensation Law. Defendant/third party plaintiff, 237 West, failed to present any material issues of fact that could defeat the instant motion. It is undisputed that Wesco Insurance has been paying the plaintiff’s workers compensation benefits for the subject occurrence on behalf of plaintiff’s employer, Labor, based upon Labor’s workers’ compensation insurance policy with Wesco Insurance. This Court also finds that plaintiff was employed by the contractor, Labor, at the time of occurrence and that Labor had a workers’ compensation policy in place that has been paying the plaintiff’s workers’ compensation benefits for the subject occurrence. Since plaintiff is receiving workers’ compensation benefits on behalf of its employer, Labor, there is no basis for third party plaintiffs’ common law claims. 237 West likewise failed to demonstrate that the motion was premature. Pursuant to CPLR 3212(f), the court may deny a motion for summary judgment if “it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated.” The contention that further discovery may yield some evidence of fault on the movant’s part is speculative and therefore insufficient to rebut the presumption. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment (see Costaneda v. DO & CO New York Catering, Inc., 144 AD3d 407 [1st Dept 2016]). A litigant seeking to avoid summary judgment on the ground that discovery has not been conducted must provide an evidentiary basis demonstrating that discovery may lead to relevant evidence or that the facts essential to posing the motion are in the movant’s exclusive knowledge and control (see CPLR 3212 [f]; Medina v. Rodriguez, 92 AD3d 850, 851 [2012; Hill v. Ackall, 71 AD3d 829, 830 2010]). 237 West made no such showing. Accordingly, it is ORDERED that the motion for summary judgment is granted. The third-party causes of action and cross-claims against third party defendant, USA Labor For Hire Inc. i/s/h/a Labor For Hire Inc. claiming common law indemnification and /or contribution is dismissed. This is the Decision and Order of the Court. Dated: June 3, 2021
