Opinion
2002-07334
Argued January 21, 2003.
February 24, 2003.
In an action to recover damages for personal injuries, the third-party defendant appeals from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated June 25, 2002, as denied its motion for summary judgment dismissing the third-party complaint.
Tromello, McDonnell Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for appellant.
Before: FRED T. SANTUCCI, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, 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, although serious, 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; Perez v. Ozone Park Lumber, 290 A.D.2d 427; Dunn v. Smithtown Bancorp, 286 A.D.2d 701). In opposing the motion, the defendant third-party plaintiff failed to demonstrate the existence of a triable issue of fact (see Perez v. Ozone Park Lumber, supra).
Moreover, it is uncontroverted that the third-party defendant complied with the insurance requirement of the parties' agreement by maintaining the necessary liability and workers' compensation insurance (see e.g. Stevens v. Grody, 297 A.D.2d 372).
Accordingly, the Supreme Court should have granted the third-party defendant's motion for summary judgment dismissing the third-party complaint.
SANTUCCI, J.P., LUCIANO, SCHMIDT and ADAMS, JJ., concur.