Opinion
8051 Index 23539/13E
01-10-2019
Carlos ALULEMA, Plaintiff, v. ZEV ELECTRICAL CORP., et al., Defendants. ZEV Electrical Corp., et al., Third–Party Plaintiffs–Respondents, v. Nationwide Maintenance & General Contracting Inc., et al., Third–Party Defendants–Appellants.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for appellants. Hardin Kundla McKeon & Poletto, P.A., New York (Joseph A. DiPisa of counsel), for respondents.
Law Office of James J. Toomey, New York (Evy L. Kazansky of counsel), for appellants.
Hardin Kundla McKeon & Poletto, P.A., New York (Joseph A. DiPisa of counsel), for respondents.
Friedman, J.P., Gische, Oing, Singh, Moulton, JJ.
"An employer's liability for an on-the-job injury is generally limited to workers' compensation benefits, but when an employee suffers a ‘grave injury’ the employer also may be liable to third parties for indemnification or contribution" ( Rubeis v. Aqua Club, Inc., 3 N.Y.3d 408, 412–413, 788 N.Y.S.2d 292, 821 N.E.2d 530 [2004] ). Under Workers' Compensation Law § 11, the definition of "grave injury" includes "an acquired injury to the brain caused by an external physical force resulting in permanent total disability," meaning, the injured worker is no longer employable "in any capacity" ( Rubeis at 417, 788 N.Y.S.2d 292, 821 N.E.2d 530 ).
Plaintiff's treating neurologist's records were dated through December 13, 2013, which was almost four years prior to plaintiff's evaluation by defendants' neuropsychologist, who concluded that plaintiff's testing failed to substantiate his claims of cognitive and emotional symptoms emanating from his accident. Although plaintiff continued to treat with Dr. Brown, he admitted that he only went for cognitive therapy once a month, and saw "Maria," not Dr. Brown. More importantly, plaintiff testified that he was looking for jobs and that he had obtained his GED. Plaintiff is able to drive his vehicle. On this record, there is no proof through competent medical testimony that plaintiff sustained an acquired injury to the brain caused by an external physical force that effected his ability to be employed in any capacity.
This Court has found that the evidence that a plaintiff suffered from certain brain conditions, such as depression and post-concussion syndrome, does not constitute grave injury absent proof that the individual was rendered unemployable in any capacity (see Purcell v. Visiting Nurses Found. Inc., 127 A.D.3d 572, 574, 8 N.Y.S.3d 279 [1st Dept. 2015] ; Aramburu v. Midtown W. B, LLC, 126 A.D.3d 498, 501, 6 N.Y.S.3d 227 [1st Dept. 2015] ; Anton v. West Manor Constr. Corp., 100 A.D.3d 523, 524, 954 N.Y.S.2d 76 [1st Dept. 2012] ).