Opinion
7903.
February 21, 2006.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about December 16, 2004, which, to the extent appealed from as limited by the brief, granted plaintiff's motion for reargument, and, upon reargument, denied the previously granted summary judgment motion of fourth third-party defendant CD Waterproofing Corp., unanimously affirmed, without costs.
Baxter Smith, P.C., Jericho (Robert C. Baxter of counsel), for appellant.
Mauro Goldberg Lilling LLP, Great Neck (Matthew W. Naparty of counsel), for Juan Mendez, respondent.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York (Eugene T. Boule of counsel), for New York Roofing, Inc., respondent.
Before: Tom, J.P., Mazzarelli, Andrias, Nardelli and Malone, JJ., concur.
Reargument was properly granted in light of the motion court's admitted failure to consider the papers submitted by plaintiff in opposition to CD Waterproofing's motion seeking summary judgment dismissing the fourth third-party complaint as against it. Although plaintiff was a CD Waterproofing employee at the time of the alleged accident and was consequently barred from suing CD Waterproofing directly, he was, contrary to CD Waterproofing's contention, nonetheless entitled to oppose dismissal of the third-party action against CD Waterproofing ( see CPLR 3212 [b]; Way v. Grantling, 289 AD2d 790). The evidence submitted by plaintiff in opposition to CD Waterproofing's summary judgment motion mandated the motion's denial inasmuch as it raised an issue of fact as to whether plaintiff had sustained a "grave injury" by reason of the alleged accident. It posed a triable issue as to whether plaintiff had been rendered incapable of employment in any capacity ( see Rubeis v. Aqua Club, Inc., 3 NY3d 408, 417). Plaintiff's physicians concurred that he had suffered brain injury resulting in permanent disabilities, including memory loss, diminished intellect and traumatic seizure disorder. They also agreed that in consequence of his injuries plaintiff is unable to care for himself or independently perform his daily life activities and requires a full-time home health care aide.