GOODLEAF v. TZIVOS HASHEM

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court properly granted the motion of the third-party defendant Arnold Steel Company (hereinafter Arnold) for summary judgment dismissing the third-party complaint insofar as asserted against it. In response to Arnold's prime facie showing that the plaintiff did not sustain a "grave injury" as defined by Workers' Compensation Law § 11, the appellant failed to raise a triable issue of fact ( see Rubeis v Aqua Club, Inc., 3 NY3d 408; DePaola v Albany Med. Coll., 40 AD3d 678; O'Berg v MacManus Group, Inc., 33 AD3d 599; Fitzpatrick v Chase Manhattan Bank, 285 AD2d 487, 487-488; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The Supreme Court providently exercised its discretion in denying that branch of the appellant's cross motion which was for leave to amend the third-party complaint to add a cause of action for contractual indemnification against Arnold, since the proposed amendment was patently devoid of merit ( see Mackenzie v Croce, 54 AD3d 825, 826; Lucido v Mancuso, 49 AD3d 220, 222).

The appellant's remaining contentions are not properly before this Court.

[Prior Case History: 19 Misc 3d 1104(A), 2008 NY Slip Op 50555(U).]