Opinion
2152, 2152A.
Decided December 18, 2003.
Order, Supreme Court, Bronx County (Janice Bowman, J.), entered September 9, 2002, which, in an action for personal injuries by a worker, insofar as appealed from, denied third-party defendant employer's motion for summary judgment dismissing the third-party complaint of defendants building owner and building manager, and order, same court and Justice, entered on or about April 3, 2003, which, insofar as appealable, denied the employer's motion to renew, unanimously affirmed, without costs.
William D. Buckley, for Plaintiffs.
Matthew S. Lerner, for Defendants.
Before: Tom, J.P., Saxe, Rosenberger, Williams, JJ.
The motion court erred in holding that plaintiff's allegation that part of his ear was cut off raises a jury question as to whether he suffered a grave injury within the meaning of Workers' Compensation Law § 11. Just as "[t]he term `loss of multiple fingers' cannot sensibly be read to mean partial loss of multiple fingers" ( Castro v. United Container Mach. Group, 96 N.Y.2d 398, 401), so too, the loss of part of an ear is distinguishable from the loss of an ear. Nevertheless, we affirm the denial of summary judgment in favor of the employer. An issue of fact exists as to whether plaintiff's injury arose out of the work called for in the purchase order pursuant to which the employer performed, and thus whether the employer is obligated to indemnify defendants under the purchase order ( see Ealem v. Eurotech Constr. Corp., 307 A.D.2d 217). We have considered and rejected the employer's other contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.