Supreme Court, Appellate Division, Second Department, New York.

Waldo SOTO, et al., plaintiffs,
v.
ALERT NO. 1 ALARM SYSTEMS, INC., defendant third-party plaintiff-respondent, et
al., defendant;
Gracie Square River Corp., third-party defendant-appellant.


May 15, 2000.


 Employee brought personal injury action against alarm company that installed 
and maintained alarm and gate opening system on employer's premises for injuries 
he sustained when automatic gate allegedly closed on his hand, and alarm company 
brought third-party indemnification action against employer. The Supreme Court, 
Kings County, Rappaport, J., entered conditional summary judgment in favor of 
alarm company on issue of contractual indemnification, and awarded attorney 
fees. Employer appealed. The Supreme Court, Appellate Division held that: (1) 
genuine issues of material fact existed as to how employee's accident occurred 
and whether alarm company was contractually obligated to maintain gate opening 
system, precluding summary judgment, and (2) alarm company was not entitled to 
indemnification from employer.

 Affirmed as modified.


West Headnotes

[1] Judgment  181(33)
228k181(33) Most Cited Cases

Genuine issues of material fact existed as to how employee's injury causing 
accident involving employer's automatic gate opening system occurred, whether 
alarm company that installed gate was contractually obligated to employer to 
maintain gate-opening system, and whether employee's claim was within intended 
scope of indemnification clause found in alarm company's agreement with employer 
to install and maintain alarm and gate opening system, precluding summary 
judgment in employee's personal injury action against alarm company.

[2] Indemnity  33(5)
208k33(5) Most Cited Cases
	(Formerly 208k8(4))

Alarm company that installed and maintained alarm and gate opening system on 
employer's premises was not entitled to indemnification from employer in 
employee's personal injury action for injuries he sustained when automatic gate 
allegedly closed on his hand while he was working, where employee did not suffer 
a "grave injury" within meaning of Workers Compensation Law. McKinney's Workers 
Compensation Law §  11.
 **508 Goldberg & Carlton, New York, N.Y. (Robert H. Goldberg of counsel;  
William L. Hahn on the brief), for third-party defendant- appellant.

 Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Kenneth Kirschenbaum and 
Thomas Weiss of counsel), for defendant third-party plaintiff- respondent.


 LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN and GLORIA 
GOLDSTEIN, JJ.



 MEMORANDUM BY THE COURT.

 *466 In an action to recover damages for personal injuries, etc., the third-
party defendant appeals from an order of the Supreme Court, Kings County 
(Rappaport, J.), dated September 13, 1999, which denied its motion for summary 
judgment dismissing the third-party complaint, and granted the cross motion of 
the defendant *467 third-party plaintiffs for conditional summary judgment on 
the issues of contractual indemnification and an award of an attorney's fee in 
the event of the entry of a judgment awarding damages in favor of the plaintiffs 
and against the defendant third-party plaintiff.

 ORDERED that the order is modified by (1) deleting the provision thereof 
denying that branch of the motion which was for summary judgment dismissing the 
defendant third-party plaintiff's claim for common-law indemnification, and 
substituting therefor a provision granting that branch of the motion and 
dismissing that claim for common-law indemnification, and (2) deleting the 
provision thereof granting the cross motion for conditional summary judgment on 
the issue of contractual indemnification and an award of an attorney's fee, and 
substituting therefor a provision denying the cross motion;  as so modified, the 
order is affirmed, with costs to the appellant.

 On June 12, 1992, the defendant third-party plaintiff Alert No. 1 Alarm 
Systems, Inc. (hereinafter Alert), entered into an agreement to install and 
maintain an alarm system at premises owned by the third-party defendant Gracie 
Square River Corp. (hereinafter Gracie Square).   Alert claims that pursuant to 
this agreement, it was also required to install and maintain an "automatic 
hydraulic gate opening system" at the premises.   An indemnification clause 
included in the contract required Gracie Square to indemnify Alert against "all 
claims" alleged to have been caused by Alert's "performance or failure to 
perform its obligations under this agreement".

 **509 In April 1995, Gracie Square employee Waldo Soto was injured when the 
automatic gate allegedly closed on his hand.   After the accident, Soto and his 
wife commenced this personal injury against Alert, alleging that it negligently 
installed, operated, and maintained the gate.   Alert then commenced a third- 
party action against Gracie Square, seeking both common-law and contractual 
indemnification.   Gracie Square subsequently moved for summary judgment, 
contending that the third-party action was barred by Workers' Compensation Law §  
11, because Soto had not suffered a "grave injury", and the indemnification 
clause of the agreement was unenforceable.   Alert then cross- moved for 
conditional summary judgment on its contractual indemnification claim, and the 
Supreme Court granted its cross motion, finding that the indemnification clause 
encompassed the plaintiffs' allegations that Alert had negligently installed, 
operated, and maintained the gate.

 [1] On appeal, Gracie Square contends that the Supreme Court erred in awarding 
Alert conditional summary judgment on its *468 contractual indemnification 
claim.   We agree.   In 1996, Workers' Compensation Law §  11 was amended to 
eliminate, except in cases of "grave injury", an employer's liability "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" (see, 
Morales v. Gross, 230 A.D.2d 7, 9, 657 N.Y.S.2d 711;  see also, Workers' 
Compensation Law §  11, as amended by L. 1996 ch. 635, §  2).   Although the 
amendment of §  11 did not affect the power of a third party to recover under 
express contractual obligations between the employer and the third party (see, 
Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 582, 673 
N.Y.S.2d 966, 696 N.E.2d 978), here issues of fact exist regarding how Soto's 
accident occurred, and whether Alert was contractually obligated to maintain the 
gate-opening system.   Under these circumstances, it cannot be said, as a matter 
of law, that the plaintiffs' suit arises from Alert's "performance or failure to 
perform its obligations under this agreement", or that the plaintiffs' claim is 
within the intended scope of the indemnification clause (see, Acosta v. S.L. 
Green Mgt. Corp., 267 A.D.2d 67, 699 N.Y.S.2d 402;  see also, Zgoba v. Easy 
Shopping Corp., 246 A.D.2d 539, 667 N.Y.S.2d 426).

 [2] Since it is undisputed that Soto did not suffer a "grave injury" within the 
meaning of Workers' Compensation Law §  11, the Supreme Court should have 
granted that branch of Gracie Square's motion for summary judgment which sought 
dismissal of Alert's common-law indemnification claim (see, Ibarra v. Equipment 
Control, 268 A.D.2d 13, 707 N.Y.S.2d 208).

707 N.Y.S.2d 507, 272 A.D.2d 466, 2000 N.Y. Slip Op. 04926

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