Opinion
102622/06.
Decided July 8, 2008.
Davidson Cohen, PC, Plaintiff.
Goldberg Segalla, LLP, Defendant/Third-party plaintiff.
Linda A. Stark, Esq., Trial Counsel to Gregory J. Allen, Esq., Third-party Defendant.
Motion sequence numbers 002 and 003 are consolidated herein for disposition.
In sequence number 002, third-party defendant Emerald Masonry, Inc. moves for summary judgment in its favor and dismissing the third-party action and all claims asserted against it, pursuant to CPLR 3212 and Workers' Compensation Law § 11. In sequence number 003, defendant/third-party plaintiff West Side Special Housing Development Fund Corp. moves for an order precluding plaintiff Hector Orbe from offering evidence at trial concerning recently alleged new injuries or, in the alternative, striking this action from the trial-ready calendar and permitting West Side to conduct discovery regarding the injuries. Emerald cross-moves for an order granting similar relief in its favor.
In this Labor Law action, plaintiff alleges that he sustained personal injuries on May 6, 2005, while operating a Makita mechanical hand saw in the course of his employment by Emerald at a construction site located at 109 West 129th Street in Manhattan. Plaintiff alleges that, as he was cutting stone with the saw, a piece of stone hit him in the left eye, causing him to involuntarily shut his eyes and cut his left wrist. Plaintiff also alleges that he was also caused to fall from a sitting position and injure his cervical and lumbar spine and left shoulder. In the original bill of particulars, plaintiff alleges that he sustained a left wrist laceration with surgical repair and permanent nerve damage, spinal derangement with disk herniations and bulges necessitating injections, left shoulder derangement, and a rotator cuff tear with arthroscopic surgical repair. In the supplemental bill of particulars served in January 2008, plaintiff alleges that he sustained cervical radiculopathy, reflex sympathetic dystrophy (RSD), and disk bulges at L3-4 and C4-C7.
Plaintiff sued West Side, the project owner and general contractor, on grounds that it violated Labor Law §§ 200, 240 (1), and 241 (6) by failing to provide a safe place to work and proper safety equipment and in failing to properly supervise the job site.
Subsequently, West Side commenced a third-party action for contractual and common-law indemnification and contribution against Emerald, plaintiff's employer, on allegations that plaintiff suffered a "grave injury," as defined by section 11 of the Workers' Compensation Law (WCL). West Side also alleges that Emerald breached its contract with West Side by failing to purchase liability insurance naming West Side as an additional insured and that Emerald violated Labor Law §§ 200 and 241 (6) and the Industrial and Building Codes by failing to properly supervise plaintiff and by providing plaintiff with a defective hand saw.
In motion sequence number 002, Emerald seeks an order granting summary judgment in its favor and dismissing the third-party complaint on grounds that, as plaintiff's employer, it is immune from liability for plaintiff's injuries and that plaintiff did not sustain a grave injury, as defined by WCL § 11. Specifically, Emerald contends that the injuries to plaintiff's left arm, wrist, and hand did not result in a total loss of use.
In opposition, West Side contends that the evidence cited by Emerald refers primarily to plaintiff's alleged injuries to other body areas and, therefore, has no probative value. West Side also contends that a question of fact exists regarding whether plaintiff sustained a total, or partial, loss of use of his left arm, wrist, and hand.
Plaintiff takes no position on the summary judgment motion.
As a threshold matter, the court notes that Emerald served and filed the instant summary judgment motion on December 17, 2007, more than seven (7) months after plaintiff filed the note of issue and, therefore, after expiration of the 60 day time in which dispositive motions may be made, pursuant to this Part's rules. However, Emerald has demonstrated good cause for consideration of the motion ( Brill v City of New York , 2 NY3d 648). At the time that plaintiff filed the note of issue and certificate of readiness to proceed to trial, issue had not yet been joined in the third-party action and, subsequently, according to the parties, the court mediator permitted discovery regarding the nature and extent of plaintiff's injuries to proceed in the third-party action ( see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Butt v Bovis Lend Lease LMB Inc. , 47 AD3d 338 [1st Dept 2007]; Pena v Women's Outreach Network, Inc. , 35 AD3d 104 [1st Dept 2006]).
Section 11 of the WCL provides, in relevant 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," unless the employee's injuries are shown to be "grave injuries." The section defines "grave injuries" as:
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.
In interpreting and applying the statutory list of grave injuries, the courts have uniformly held that "'[t]he grave injuries listed are deliberately both narrowly and completely described. The list is exhaustive, not illustrative; it is not intended to be extended absent further legislative action'" ( Castro v United Container Machinery Group, Inc., 96 NY2d 398, 402, quoting Governor's Mem approving L 1996, ch 635, 1996 NY Legis Ann, at 460 [holding that loss of multiple finger tips, rather than whole fingers, does not constitute grave injury for purposes of WCL § 11]; see e.g. Meis v ELO Org., LLC, 97 NY2d 714 [holding that amputation of thumb does not constitute a grave injury]; Kraker v Consolidated Edison Co. , 23 AD3d 531 [2d Dept 2005] [holding that partial loss of use of right hand does not constitute grave injury]; Trimble v Hawker Dayton Corp., 307 AD2d 452 [3d Dept 2003] [holding that where even minimal use of hand remains, injury does not constitute grave injury]).
The parties do not dispute that, of plaintiff's alleged injuries sustained as a result of the accident, only those to the left arm, wrist, and hand, may arguably fall within the listed grave injuries. The Harlem Hospital Center records regarding plaintiff's diagnosis and treatment on the date of the accident demonstrate that plaintiff sustained a left wrist laceration with ruptured flexor tendon and transected radial artery and that he underwent surgery involving left wrist exploration with ligation of the radial artery and repair of the flexor carpi radialis.
The relevant evidence, consisting of portions of plaintiff's deposition testimony and various medical reports submitted by the parties, raises genuine triable issues of material fact regarding whether plaintiff sustained a partial or total loss of use of his left arm, wrist, and/or hand. Therefore, summary judgment is not appropriate here ( see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223). "To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable; issue-finding, rather than issue-determination, is the key to the procedure" ( Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [internal citations and quotation marks omitted]). Moreover, summary judgment is not appropriate where, as here, resolution of the issues requires credibility determinations ( see S.J. Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338).
For example, in support of Emerald's contention that any loss of use was partial rather than total, William J. Kulak, M.D., West Side's expert orthopedist, concluded after review of the medical records and an examination of plaintiff that plaintiff "sustained [a] laceration to the left wrist . . . [that] did not involve any nerves at that level nor any tendons to the fingers" (William J. Kulak, M.D., Sept 20, 2007 Report, at 12). Dr. Kulak also concluded that the rotator cuff injury and arthroscopic surgery were not related to the subject accident, but instead were the result of a "pre-existing, chronic, longstanding, degenerative bone disease and degenerative soft tissue pathology completely unrelated to the occurrence" ( id. at 11). He further stated that, with regard to plaintiff's shoulder injury, "[t]here is absolutely no credibility to [plaintiff's] statements in regard to his complaints or subjective findings. They are in total conflict to the medical records and the injury and conflict even with his own history" ( id. at 12).
However, the record also includes evidence in support of West Side's contention that plaintiff sustained a total loss of use of his left arm, wrist, and/or hand. Plaintiff testified at deposition that, although undergoing physical therapy, he has no strength or feeling in his hand and cannot close his hand or move his fingers ( see Hector Orbe Feb. 22, 2007 Dep Tr, at 84, 110-111).
After examination on behalf of the Workers' Compensation Board, Martin Manin, M.D., an orthopedic surgeon, found that plaintiff was totally and permanently incapacitated and unable to return to work, that he had "no active finger flexion," and that he described "no feeling to touch or pinprick in the entire left upper extremity" (Martin Manin, M.D., Report to New York State Ins. Fund, Nov. 30, 2007, at 2-3). In addition, after review of the medical records and examination of plaintiff, Joel B. Grad, M.D., F.A.C.S., A.B.O.S., West Side's hand specialist, found that the left wrist injury "has resulted in a permanent impairment and disability of [plaintiff's] non-dominant left upper extremity" and that "pre-injury status cannot be restored" (Joel B. Grad, M.D. F.A.C.S. A.B.O.S., Nov. 6, 2007 Report, at 4). Gerald F. Gaughan, M.D., C.P.M.R., plaintiff's treating physician, found that "severe limitation in the mobility of the left wrist is . . . present. No wrist extension beyond neutral is possible. . .No ulnar or radial deviation is possible. [Plaintiff] has no grip strength in his left hand" (Gerald F. Gaughan, M.D., C.P.M.R., Sept. 12, 2007 Report). Dr. Gaughan concluded that the "left wrist and hand dysfunction is not going to get better, and I believe the only hope for restoration of some partial function of left wrist and hand is through . . . hand surgery . . . [and plaintiff] is totally disabled and unable to work in any capacity" ( id., §§ 2, 4).
Inasmuch as a triable issue exists regarding whether plaintiff has sustained a partial or total loss of use of his left arm, wrist, and/or hand, that branch of Emerald's motion for summary judgment and dismissal of the third-party action as barred by WCL § 11 is denied.
Upon denial of the summary judgment branch of the motion, Emerald seeks an order compelling plaintiff to submit to an independent medical examination of the left arm, wrist, and hand. This branch of the motion is granted. A third-party defendant is not required to rely on the third-party plaintiff's choice of expert for medical examination of the plaintiff and may compel the plaintiff to submit to such an examination ( Sledz v 333 E. 68 St. Corp., 254 AD2d 196 [1st Dept 1998]; see CPLR 3121 [a]).
Next, Emerald seeks summary judgment and dismissal of the first and second causes of action asserted in the third-party complaint for contractual indemnification and breach of contract by failure to procure insurance naming West Side as an additional insured. This branch of Emerald's motion is granted without opposition by West Side. In addition, West Side admits that there were no written documents providing for contractual indemnification from Emerald ( see Third-Party Plaintiff West Side's Response to Emerald's Notice to Admit, Oct. 8, 2007, ¶ 1). Claims for contractual indemnification and breach of contract by failure to provide insurance coverage must be supported by a written agreement or they will be dismissed ( Spiegler v Gerken Bldg. Corp. , 35 AD3d 715 [2d Dept 2006]).
In motion sequence number 003, West Side and Emerald seek to preclude plaintiff from offering evidence at trial concerning certain injuries alleged in plaintiff's fifth supplemental bill of particulars served on January 29, 2008. In the alternative, Emerald and West Side seek to strike this action from the trial-ready calendar and permission to depose plaintiff on this injury and to have an independent medical evaluation by a specialist on the ground that, otherwise, their ability to defend against the claim will be unduly prejudiced.
In opposition, plaintiff contends that the injuries alleged are not newly alleged and that West Side and Emerald have long been aware of them and have had ample opportunity to conduct discovery.
West Side and Emerald contend that plaintiff's allegations of cervical radiculopathy, reflex sympathetic dystrophy (RSD) of the left wrist, and disk bulges at L3-4 and C4-C7 are asserted for the first time in the fifth supplemental bill of particulars served on January 29, 2008, some 10 months after plaintiff filed the note of issue and certificate of readiness on May 1, 2007. West Side and Emerald focus on the RSD allegation and contend that it is different from the left arm, wrist, and hand injuries previously claimed by plaintiff.
However, the record demonstrates that the alleged injury was previously disclosed to West Side and Emerald. In medical reports dated January 2, 2007, January 23, 2007, February 27, 2007, and March 27, 2007, John Mitamura, M.D., Ph.D., plaintiff's treating orthopedist, diagnosed plaintiff as having developed RSD of the left wrist. Plaintiff produced these reports on May 10, 2007. Although these reports were produced following plaintiff's deposition on February 22, 2007, a review of the deposition transcript demonstrates that West Side examined plaintiff at some length regarding his treatment with Dr. Mitamura and his complaints of pain, numbness, and restriction of movement of his left arm, hand, and wrist. Further, the reports were produced several months before plaintiff's examinations by West Side's medical experts, Drs. Kulak, Grad, and James M. Pascuiti, M.A., C.R.C, an employment and rehabilitation consultant. Therefore, West Side had the opportunity to instruct its experts to examine plaintiff with regard to the RSD diagnosis, and the plaintiff's medical reports containing the RSD diagnosis were available to West Side and Emerald's experts. Further, both West Side and Emerald have offered no credible claim of prejudice, backed with an affidavit/affirmation from its expert(s), indicating a need for further examination.
Last, the court notes that West Side and Emerald did not move to compel additional discovery until some four months after service of the fifth supplemental bill of particulars, and neither West Side, nor Emerald have supplied good faith affirmations as required. See 22 NYCRR § 202.7.
For these reasons, the motion and cross motion to strike the note of issue and certificate of readiness, or, in the alternative, to compel further discovery, are denied.
Accordingly, it is
ORDERED that motion sequence number 002 is granted to the limited extent that summary judgment on the first and second causes of action asserted in the third-party action is granted in favor of third-party defendant Emerald Masonry, Inc. and these claims are severed and dismissed; Emerald is directed to designate an expert to conduct an independent medical examination of the left arm, wrist, and hand of plaintiff Hector Orbe within 30 days of entry of this order, or Emerald's right to such an examination will be deemed waived; and plaintiff is directed to submit to such an examination within 30 days of service of Emerald's designation of an expert; and it is further
ORDERED that the remaining causes of action in the third-party action shall continue; and it is further
ORDERED that the motion to strike and to compel discovery by defendant West Side Special Housing Development Fund Corp. is denied in its entirety; and it is further
ORDERED that the cross motion by defendant Emerald Masonry, Inc. is denied in its entirety; and it is further
ORDERED that within 30 days of entry of this order, Emerald Masonry, Inc. shall serve a copy upon all parties with notice of entry.