Lopez v Gem Gravure Co.

[*1] Lopez v Gem Gravure Co. 2004 NY Slip Op 50055(U) Decided on February 13, 2004 Supreme Court, Kings County, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 13, 2004
Supreme Court, Kings County,

ANTONIO LOPEZ, Plaintiff,

against

GEM GRAVURE CO., THE GEON COMPANY, MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., LAU INDUSTRIES, INC. and GRAINGER INDUSTRIAL, BREEN COLOR CONCENTRATES, INC., SILOGRAM LUBRICANTS CORP., and SUPERFLEX MANAGEMENT, L.L.C., Defendants. GEM GRAVURE CO., THE GEON COMPANY MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., a division of LAU INDUSTRIES, INC. s/h/a BARRY BLOWER, INC. LAU INDUSTRIES, INC. and W.W. GRAINGER, INC., s/h/a GRAINGER INDUSTRIAL, Third-Party Plaintiffs, SUPERFLEX EQUITY, LLC and SUPERFLEX LIMITED, Third-Party Defendants. GEM GRAVURE CO., THE GEON COMPANY, MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., a division of LAU INDUSTRIES, INC. s/h/a/ BARRY BLOWER, INC. LAU INDUSTRIES, INC.and W.W. GRAINGER, INC., s/h/a GRAINGER INDUSTRIAL, Second-Third-Party Plaintiffs, SUPERFLEX MANAGEMENT LLC., Second Third-Party Defendants.



Index No. 17939/2002



Levy Phillips & Konigsberg

Attorneys for Plaintiff

800 Third Avenue [*2]

New York, New York 10022

Hoguet Newman & Regal, LLC

Attorneys for Gem Gravure Co., Inc.

10 East 4oth Street, 35th Floor

New York, New York 10016

Thompson, Hine LLP

Attorneys for Polyone Corp.

One Chase Manhattan Plaza

New York, New York 10005

Gordon & Silber, P.C.

Attorneys for Defendant/Third-Party Plaintiff Barry Blower, a Division

of Lau Industries, Inc. s/h/a Barry Blower Inc. And Lau Industries

355 Lexington Avenue

New York, New York 10017-6603

Fischbein, Badillo, Wagner & Harding

Attorneys for Defendant Matthews International Corp.

48 South Service Road - Suite 300

Melville, New York 11727

Kurzman, Kareslen & Frank, LLP

Attorneys for Spartech Polycom

230 Park Avenue

New York, New York 10169

Wilson Elser Moskowitz Edelman & Dicker

Attorneys for Willet Limited

150 East 42nd Street

New York, New York 10017

London Fisher, LLP

Attorneys for Tadir Air Inc.

59 Maiden Lane

New York, New York 10038

Lifflander, Reich & Smith, LLP

Attorneys for McQuay International

1221 Avenue of the Americas, 26th Floor

New York, New York 10020-1089

Gordon & Silber, PC

Attorneys for Barry Blower, Inc.

355 Lexington Avenue

New York, New York 10012

Lavin, Coleman , O'Neil, Ricci, Finarelli & Gray

Attorneys for W.W. Grainger, Inc. s/h/a Grainger Industrial

767 Third Avenue, 7th Floor

New York, New York, 10017

McGivney, Kluger & Gannon, P.C. [*3]

Attorneys for Breen Color Concentrates

80 Broad Street - 23rd Floor

New York, New York 10004

Montclare & Wachtler

Attorneys for Silogram Lubricants

110 Wall Street

New York, New York 10005

McMahon, Martine & Gallagher, LLP

Attorneys for Superflex, Limited

90 Broad Street

New York, NY 10004

Martin Schneier, J.

Plaintiff is a former employee of third party defendant Superflex Limited ("Superflex"). Plaintiff brought this personal injury action alleging he had been injured by exposure to chemicals while working in Superflex's factory. Plaintiff named as defendants twelve companies that manufacture inks, resins or ventilation systems that were allegedly used in the factory. Ten of these defendants brought third party actions seeking contribution or indemnity from Superflex. Superflex moves to dismiss the third party complaint on the grounds that Plaintiff did not suffer a "grave injury" within the meaning of section 11 of the Workers' Compensation Law.

Section 11 of the Workers' Compensation Law states in part: "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."

In this case the third party plaintiffs argue that the plaintiff's injury, a bi-lateral kidney failure is a terminal condition and, therefore, plaintiff is dead for purposes of the statute.

It is well-settled that the list of grave injuries is to be strictly construed (Castro v. United Container Machinery Group, Inc. 96 N.Y.2d 398). The interpretation requested by the third party plaintiffs would result in an impermissible expansion of the "grave injury" category. The third party plaintiffts' argument that this motion is premature because the plaintiff has not been examined by an independent medical expert is also without merit. Plaintiff's appearance at a medical exam would only confirm that he is alive. Accordingly, the Superflex's motion is granted and the third party complaint, cross claims and counterclaims asserted against Superflex are dismissed. [*4]

This shall constitute the Decision and Order of the Court.

February 13, 2004

J.S.C.

Decision Date: February 13, 2004