Opinion
102221/08.
Decided December 22, 2009.
Upon the foregoing papers, the motion for leave to reargue the Decision and Order of this Court dated May 29, 2009 by defendant PACS Industries Inc. (hereinafter "PACS") is granted, and upon reargument, the cross claims asserted by both the moving defendant and Consolidated Edison Company of New York, Inc. (hereinafter "Consolidated Edison") are severed and converted into third-party actions against MTA-Staten Island Railway (hereinafter, "SIRTOA").
The purpose of a motion for reargument is to afford a party an opportunity to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion ( see CPLR2221 [d][2]; Andrea v. E.I. Du Pont De Nemours Co., 289 AD2d 1039, 1040-1041). At bar, it appears that a cross motion (No. 603) and affirmation in opposition served by the moving defendant were filed in the Richmond County Clerks Office on April 3, 2009, subsequent to the March 31, 2009 return date of the original motion (No. 3656), but prior to the Decision and Order of this Court entered on June 3, 2009. In that determination, as to which reargument is sought, defendants MTA and SIRTOA were granted summary judgment dismissing the complaint and any cross claims against them.
At this point, the movant (PACS) had yet to impose any cross claims, so the decision as to it was harmless. However, in a subsequently calendared "cross motion" (No. 603) PACS was granted leave to amend its pleadings to assert the very cross claims which it now claims were "overlooked" by the court in its original determination. Inasmuch as this cross motion and PACS' affirmation in opposition to the summary judgment motions were neither placed before the Court nor subsequently consolidated therewith, they may not be considered on this reargument motion. Parenthetically, co-defendant Consolidated Edison, which had cross claimed against SIRTOA in its answer to the complaint, has not moved for reargument.
Neither may the motion be considered as one to renew, as it is not based upon new evidence which was unavailable to the movant at the time of the original motion ( Tokio Marine Fire Ins. Co. v. Borgia, 11 AD3d 603, lv denied and app. dismissed 4 NY3d 793 [ emphasis supplied]).
In any event, the underlying action was commenced to recover damages for injuries allegedly sustained on May 22, 2007, when plaintiff, an employee of SIRTOA, was electrocuted while performing routine maintenance at the Eltingville Substation on Staten Island. In granting SIRTOA's summary judgment motion, the Court properly reasoned that the Workers' Compensation Law was plaintiff's sole and exclusive remedy as against his employer for the unintentional injuries sustained in the course of his employment ( see Reich v. Manhattan Boiler Equip. Corp., 91 NY2d 772). Since it was undisputed that plaintiff had already made a claim for and received Workers Compensation benefits, the complaint as against SIRTOA was severed and dismissed .
For reasons unrelated to this motion, the complaint against the Metropolitan Transit Authority was simultaneously dismissed.
Upon the granting of PACS' subsequent "cross motion" for leave to serve an amended answer asserting the cross claims omitted from its original answer, this Court ruled that under section 11 of the Workers' Compensation Law, both PACS and Consolidated Edison retained viable causes of action against plaintiff's employer in light of the fact that the injury to plaintiff was "grave" within the meaning of Workers' Compensation Law § 11. That statute provides, in pertinent part, that
"An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability".
Here, since plaintiff's Bill of Particulars alleges the "loss of [his] left ear and [a] portion of left side of [his] skull", his injuries are clearly "grave" within the meaning of Workers' Compensation Law § 11.
Under these circumstances, it lies within the inherent power of the Court to search the record in the summary judgment motion as to which reargument has been granted, reinstate Consolidated Edison's cross claims against SIRTOA, and convert same, as well as the cross claims asserted in PACS' "amended answer", into third-party actions now that the complaint as against each of these defendants has been dismissed.
Accordingly, it is hereby
ORDERED, that the motion for leave to reargue is granted to the extent indicated; and it is further
ORDERED that the caption of the action be amended to read:
and it is further
ORDERED that the Clerk shall mark his records accordingly.