Opinion
5146
January 20, 2005.
Order, Supreme Court, Bronx County (Anne E. Targum, J.), entered June 25, 2004, which, to the extent appealed from, denied so much of defendants' motion for summary judgment as sought dismissal of the seventh cause of action in the complaint, and so much of that motion by third-party plaintiffs (the Argus/Adler defendants) for a conditional order of contractual indemnification, and the cross motion by third-party defendant for summary judgment dismissing the third-party complaint, unanimously modified, on the law, the cross motion granted to the extent of dismissing the first and second causes of action in the third-party complaint, and otherwise affirmed, without costs.
Before: Mazzarelli, J.P., Williams, Gonzalez, Sweeny and Catterson, JJ.
The court properly denied the motions insofar as they sought dismissal of the complaint. There are triable issues as to whether the injured plaintiff had been hired by third-party defendant prior to the accident, which occurred during sheetrock installation. The court also properly declined to dismiss the cause of action pursuant to Labor Law § 200 in light of remaining issues as to the extent of supervision, direction and control exercised by Argus at the work site ( see Gawel v. Consolidated Edison Co. of N.Y., 237 AD2d 138). Moreover, in light of these issues, the Argus/Adler motion for summary judgment on the third-party claim for a conditional order of contractual indemnification was properly denied ( see Sheehan v. Fordham Univ., 259 AD2d 328). However, the third-party claims for common-law indemnification and contribution should be dismissed because the injury sustained — loss of vision in one eye — is not a "grave injury" under Workers' Compensation Law § 11 ( Flores v. Lower E. Side Serv. Ctr., 3 AD3d 459, lv granted 3 NY3d 605; Ibarra v. Equipment Control, 268 AD2d 13, 18).