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TADEUSZ OLSZEWSKI, ET AL., Plaintiffs-Respondents, JERZY GIELDOWSKI, Plaintiff, v. PARK TERRACE GARDENS, INC., ET AL., Defendants-Appellants, P.T. TENANTS CORP., Defendant. PARK TERRACE GARDENS, INC., ET AL., Third-Party Plaintiffs-Respondents-Appellants, P.T. TENANTS CORP., Third-Party Plaintiff,

Defendants' recalcitrant worker defense, predicated on plaintiff's failure to secure the harness he had been furnished to the safety line, is unavailing, there being no dispute that the scaffold was defective, and there being no evidence that plaintiff was given an "immediate instruction" to use the harness (Sanango v. 200 E. 16th St. Hous. Corp., 290 A.D.2d 228, 228-229, citing Balthazar v. Full Circle Constr. Corp., 268 A.D.2d 96, 99; Aragon v. 233 W. 21st St., 201 A.D.2d 353, 354). The motion court also correctly held that the indemnification clause in the subcontract does not purport to indemnify the general contractor for its own negligence and otherwise warrants judgment in favor of defendants on their third-party claims against the employer for contractual indemnification (see Dutton v. Pankow Bldrs., 296 A.D.2d 321). However, the motion court erred in its apparent exclusive reliance on plaintiff's bill of particulars in finding that he did not sustain a grave injury within the meaning of Workers' Compensation Law § 11, and we accordingly modify to reinstate defendants' claims for common-law indemnification against the employer. We have considered the parties' other arguments for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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OLSZEWSKI v. PARK TERRACE GARDENS
(Jun 17, 2003)