Summary
holding that amputation of thumb does not constitute a grave injury
Summary of this case from ORBE v. WEST SIDE SPECIAL HOUS. DEV. FUND CORP.Opinion
34
Decided February 13, 2002.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered April 10, 2001, which affirmed an order of the Supreme Court (Louise Gruner Gans, J.), entered in New York County, denying the second and third third-party defendant's motion for summary judgment dismissing the second and third third-party complaints seeking contribution or indemnification. The Appellate Division certified the following question: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"
Plaintiff plumber was employed by third-party defendant when he lost his thumb during a construction accident. Plaintiff sued defendant owners and lessees of the premises and the general contractor. The defendants commenced third-party actions against the employer for contribution or indemnification. Supreme Court denied the employer's motion to dismiss the second and third third-party complaints concluding that plaintiff sustained a "grave injury" (Workers' Compensation Law § 11) and, therefore, the third-party actions for indemnity or contribution could be maintained.
The Appellate Division concluded that whether plaintiff suffered a "grave injury" pursuant to Workers' Compensation Law § 11 could not be conclusively determined on the record, that the statute requires the loss of the hand's use, and that in the circumstances presented a jury should be allowed to examine the degree of plaintiffs impairment to determine if it is sufficiently "grave" to allow third-party recovery against the employer.
Meis v. ELO Org., 282 A.D.2d 247, reversed.
Morris, Duffy, Alonso Faley, LLP, New York City (Yolanda L. Himmelberger and Kevin G. Faley of counsel), for third-party defendant-appellant.
Argyropoulos Bender, Astoria (Michael S. Bender of counsel), for plaintiffs-respondents.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur in memorandum.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, the third-party defendant's motion for summary judgment dismissing the second and third third-party complaints granted and the certified question answered in the negative.
Workers' Compensation Law § 11 does not list the loss of a thumb as a "grave injury," and plaintiff failed to demonstrate that due to the amputation of his thumb he suffers a "permanent and total loss of use" of the hand (see Workers' Compensation Law § 11). Plaintiff's argument that the loss of his thumb automatically renders his hand totally useless is unavailing. As this Court recently held in Castro v. United Container Mach. Group ( 96 N.Y.2d 398, 401), "[i]njuries qualifying as grave are narrowly defined * * * [and the w]ords in the statute are to be given their plain meaning without resort to forced or unnatural interpretations."
On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, third-party defendant's motion for summary judgment dismissing the second and third third-party complaints granted and certified question answered in the negative, in a memorandum.