Opinion
2001-08731
Submitted December 12, 2001.
January 14, 2002.
In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Kings County (Barron, J.), dated August 29, 2001, which denied its motion for summary judgment dismissing the third-party complaint.
Herzfeld Rubin, P.C., New York, N.Y. (Herbert Rubin, David E. Hamm, and Linda M. Brown of counsel), for third-party defendant-appellant.
Kelly, Rode Kelly, LLP, Mineola, N.Y. (Loris Zeppieri of counsel), for defendant third-party plaintiff-respondent.
Before: SONDRA MILLER, J.P., CORNELIUS J. O'BRIEN, LEO F. McGINITY, ROBERT W. SCHMIDT, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.
The third-party defendant met its burden of proving, by competent admissible evidence (see Gaddy v. Eyler, 79 N.Y.2d 955; Fitzpatrick v. Chase Manhattan Bank, 285 A.D.2d 487), that the plaintiff's injuries did not rise to the level of "grave injuries" within the meaning of Workers' Compensation Law § 11 (see, Castro v. United Container Mach. Group, 96 N.Y.2d 398; Dunn v. Smithtown Bancorp, 286 A.D.2d 701; Fitzpatrick v. Chase Manhattan Bank, supra; Curran v. Auto Lab Servs. Ctr., 280 A.D.2d 636; Ibarra v. Equipment Control, 268 A.D.2d 13). In opposition to the motion, the third-party plaintiff failed to demonstrate the existence of a triable issue of fact. Accordingly, the Supreme Court should have granted the third-party defendant's motion for summary judgment dismissing the third-party complaint.
S. MILLER, J.P., O'BRIEN, McGINITY, SCHMIDT and TOWNES, JJ., concur.