No Right to Contribution from Employer of Injured Plaintiff

Construction contracts contain multiple provisions to shift the obligation from one to another in case of injury during the work. Often the contracts work to attempt to avoid the exclusivity of workers’ compensation insurance to the employer causing an employer to indemnify another if an employee is injured.

In Paul Kanyuch v. 11 West 19th Associates LLC C/o Block Buildings LLC, Maia MP Construction Inc, Talisen Construction Corp, Tony Birch, 11 West 19th Associates LLC
C/o Block Buildings LLC, Talisen Construction Corp, Tory Burch i/s/h/a Tony Birch v.
Eclipse Contracting Corp., 2020 NY Slip Op 30004(U), Index No. 153529/2016
Third-Party Index No. 595070/2017, Supreme Court of the State of New York New York County Part IAS Motion 47EFM (January 3, 2020) a New York appellate court was asked to make the employer of an injured worker contribute to the defense and indemnity of the owner and other contractors involved in the construction project.


Paul Kanyuch sued after he fell from a scaffold while performing work at a construction site. Defendants sued the plaintiff’s employer  Eclipse Contracting Corp. (Eclipse), for common-law indemnification and contribution.

Eclipse moved for summary judgment seeking dismissal of the first  cause of action in the third-party complaint for common-law contribution and indemnification.

Burch, a tenant of the building, hired Talisen as the general contractor for the construction of an office space and showroom. Talisen in turn hired Eclipse as the carpentry subcontractor for the renovation project. Plaintiff was injured when he fell from a scaffold that collapsed under him while applying ceiling tiles at the jobsite. Plaintiff testified at his deposition that he was employed by Eclipse as a carpenter. Eclipse gave plaintiff instructions for his work.  According to the bill of particulars, plaintiff sustained multiple fractures, torn ligaments, joint effusions, and sprains as a result of the accident.


With respect to common law contribution and indemnification, it is well-established that where an employee is injured in the course of employment, his exclusive remedy against his employer is ordinarily a claim for workers’ compensation benefits. The employer cannot be held liable for common law indemnification and contribution claims asserted by third-parties unless the employee sustained a “grave injury”. Injuries qualifying as grave are narrowly defined in the law.

In order to be entitled to dismissal of the contribution and indemnification claims, Eclipse, must show that plaintiff was its employee at the time of the accident and that he did not suffer a “grave injury” as defined by the Workers’ Compensation Law. Eclipse met this burden.

First, it is undisputed that plaintiff was employed by Eclipse on the date of the accident and that he was injured during the course of his work for Eclipse.

Second, plaintiff did not suffer a “grave injury” as defined by the Workers’ Compensation Law. According to plaintiff’s verified bill of particulars, plaintiff sustained multiple fractures, torn ligaments, joint effusions, and sprains as a result of the accident. Such injuries do not qualify as a “grave injury” under the Workers’ Compensation Law, which narrowly defines such injuries to be: “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.”

Accordingly, the first cause of action in the third-party complaint for common law contribution and indemnification against Eclipse must be dismissed.


It is important, when trying to shift the burden of injuries to workers, is an important part of every construction contract. It is effected with contribution and indemnification clauses and clauses requiring subcontractors to acquire insurance in favor of the owner and general contractors. In this case the indemnification clause was ineffective because of the exclusivity of workers’ compensation to the employer of the injured persons. Other attempts to shift the burden remain because of the failure to prove the existence of insurance. If Eclipse proves the existence of insurance it will be able to eliminate itself from the case.

© 2020 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at and

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