Summary
In Sexton v Cincinnati Inc. (2 AD3d 1408, 1410 [4th Dept 2003]), the plaintiff sustained a traumatic crush injury to his hands.
Summary of this case from Ulloa-Narvaez v. E L Realty of Suffolk Inc.Opinion
CA 03-01016.
December 31, 2003.
Appeal from that part of an order of Supreme Court, Chautauqua County (Gerace, J.), entered February 3, 2003, that denied the motion of third-party defendant seeking summary judgment dismissing the third-party complaints.
WALSH, ROBERTS GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.
FESSENDEN, LAUMER DE ANGELO, JAMESTOWN (J. KEVIN LAUMER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
GIBSON McASKILL CROSBY, BUFFALO (BRIAN P. CROSBY OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT CINCINNATI INCORPORATED, ALSO KNOWN AS CINCINNATI, INC.
GOLDBERG SEGALLA LLP, BUFFALO (CHRISTOPHER J. BELTER OF COUNSEL), FOR THIRD-PARTY PLAINTIFFS-RESPONDENTS NAMCO CONTROLS CORP. AND DOLAN JENNER CORPORATION.
ERICKSON, WEBB, SCOLTON HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT ROCKFORD SYSTEMS, INC.
COHEN LOMBARDO, P.C., BUFFALO (NEIL R. SHERWOOD OF COUNSEL), FOR THIRD-PARTY PLAINTIFF-RESPONDENT NI JEF ELECTRIC INCORPORATED.
Before: PRESENT: PINE, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the motion of third-party defendant, Phoenix Metal Fabricating, Inc. (Phoenix), seeking summary judgment dismissing the third-party complaints. Plaintiff commenced these actions to recover damages for injuries he sustained during the course of his employment with Phoenix when his hands were crushed by a 90-ton press brake machine, and defendants commenced the third-party actions at issue herein. In support of its motion, Phoenix contended that, as a matter of law, plaintiff did not sustain a grave injury within the meaning of Workers' Compensation Law § 11 ( see Castro v. United Container Mach. Group, 96 N.Y.2d 398). Even assuming, arguendo, that Phoenix met its initial burden, we conclude that defendants-third-party plaintiffs raised an issue of fact whether plaintiff sustained a loss of use of his hands that is "permanent and total" and thus whether he sustained a grave injury within the meaning of the statute (§ 11; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562). They submitted the affidavit of their medical expert, who determined that plaintiff has not retained even minimal use of his hands ( cf. Trimble v. Hawker Dayton Corp., 307 A.D.2d 452). Although Phoenix presented evidence that plaintiff is able to perform certain limited activities with his hands, the medical expert for defendants-third-party plaintiffs stated in his affidavit that plaintiff actually performs those activities with his arms, using the adaptive techniques of an amputee.