Glazner v Bellet Co., Inc.

[*1] Glazner v Bellet Co., Inc. 2004 NY Slip Op 50796(U) Decided on July 6, 2004 Supreme Court, Bronx 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2004
Supreme Court, Bronx County

MICHAEL GLAZNER,Plaintiff(s),

against

BELLET COMPANY, INC., GLORIA B. SILVER, WHITE EAST ASSOCIATES AND ZEPKE/GOLDBERG, INC.,Defendant(s).



17088/02

Nelson S. Roman, J.

Former defendant PHILLIP BELLET (Phillip) moved seeking summary judgment against all other parties. Thereafter, said defendant and all other parties stipulated to withdraw said motion. Pursuant to said stipulation, Phillip was substituted out of this action and THE BELLET COMPANY, INC., (Bellet) was added as a defendant. The current caption represents the substitution. Third-party defendant BUTLER JOHNSON (Butler) cross-moves seeking summary judgement and dismissal of the third-party complaint. Butler claims that the instant Third-Party action is summarily bared by the Workers' Compensation Law in that no contract for indemnification exists between Butler and the Third-Party plaintiffs. In addition, Butler, contends that plaintiff has not suffered a "grave" injury as defined by the Workers' Compensation Law. Lastly, Butler claims that the third-party complaint fails to plead that plaintiff suffered a "grave" injury, and as such the complaint is defective. Third-party plaintiffs GLORIA B. SILVER, WHITE EAST ASSOCIATES (Gloria) and ZEPKE/GOLDBERG, INC., (Zepke), oppose said motion alleging that plaintiff, within his bill of particulars, has asserted injuries which are considered "grave" under the Workers' Compensation law. Bellet does not oppose the instant motion.

The instant action arises from an alleged fall off a roof. On November 15, 2001, plaintiff a roofer employed by Butler, was working at the premises owned or occupied by Gloria and located at "352 White Plains Road in Eastchester, Westchester New York." While not directly addressed or relevant to the instant motion, Butler was apparently hired by Bellet who was allegedly hired by Zepke to perform the work on the roof. Plaintiff alleges that while he was lowering debris/garbage from the roof, he fell off the roof which was twenty-five feet above the ground. Plaintiff suffered a litany of injuries and as a result he sued Bellet, Gloria and Zepke. Specifically, and at issue in the instant motion, plaintiff's bill of particulars alleges, inter alia, that he sustained facial lacerations and cognitive brain injuries.

There are several facts which are beyond change and which are relevant and dispositive for the purposes of deciding the motion herein. Plaintiff worked for Butler. Butler had a Workers' [*2]Compensation insurance policy in effect at the time of this accident. Plaintiff received Workers' Compensation benefits from Butler after this accident. There is no claim that Butler was a party to any contracts whereby Butler was to indemnify anyone for injuries resulting from the work described. Gloria and Zepke's basis for impleading Butler is that the plaintiff suffered a "grave" injury.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 A.D.2d 387 (1st Dept. 2001). Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 A.D.2d 50 (1st Dept. 1997).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 A.D.2d 811 (4th Dept. 2000): Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 A.D.2d 1037, 593 N.Y.S.2d 657; see generally, Black v. Chittenden, 69 N.Y.2d 665, 511 N.Y.S.2d 833, 503 N.E.2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341 357 N.Y.S.2d 478, 313 N.E.2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas & Elec., 242 A.D.2d 928, 665 N.Y.S.2d 372; Mickelson v. Babcock, supra).

See also, Yaziciyan v. Blancato, 267 A.D.2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 A.D.2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 A.D.2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 N.Y.2d 167 (1960).

The Law on Workers' Compensation as it relates to Third-Party actions

It is well settled that employers are required to secure and provide a system of compensation for their employees in the event that they are hurt or killed as a result of injuries sustained in their course of their employment. Workers' Compensation Law §10. This compensation is provided to an employee without regard to fault. Id. If the employee provides for such compensation it is the [*3]employer's exclusive liability in the event of an injury to an employee and it is an employee's exclusive remedy against his employer. Workers' Compensation Law §11. The right of compensation under this law is the employee's exclusive remedy even if the injury is the result of the negligence of a co-worker. Workers' Compensation Law §29(6).

On September 10, 1996, The New York Legislature amended the Workers' Compensation Law. The amendment to §11 of the law specifically addressed third party actions against employers. Under the amended law, third party impleaders, against an employer who provides Workers' Compensation coverage to his employees, are generally barred. Workers' Compensation Law §11. The two exceptions are where there is (1) a contractual obligation specifically requiring the employer to indemnify the third party, or (2) when the employee has suffered a "grave" injury as defined and enumerated by the statute. Id.

In defining "grave" injury the Workers' Compensation Law, §11 states 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. (emphasis added

"The list [above] is exhaustive, not illustrative; it is not intended to be extended absent further legislative action." Marvin Castro v. United Container Group, Inc., 96 N.Y2d 398, 492 (2001) quoting, Governor's Mem approving L 1996, ch 635, 1996 NY legis Ann, at 460. In another case where the Court had an opportunity to opine on this very issue it stated "'[i]njuries qualifying as grave are narrowly defined... [and the words] in the statute are to be given their plain meaning without resort to forced or unnatural interpretations'" Spiridou Meis v. Elo Organization, LLC, 97 N.Y.2d 714, 714 (2002)

Hence it is patently obvious and well settled that the definition of what constitutes a "grave" injury is limited to the injuries enumerated. Consequently, an injury sustained, no matter how serious , will not be considered "grave" for purposes of impleading an employer, unless said injury appears on the list.

The burden of proving that an injury is "grave" in order to maintain an action against an employer always rest with the party seeking indemnification or contribution from the employer. Ibarra v. Equipment Control , Inc. 268 A.D.2d 13 (2nd Dept. 2000)[FN1] (Case holds that even when [*4]an employer seeking summary judgment, premised on an absence of a "grave" injury, fails to meet his burden by proving that plaintiff has not suffered a "grave" injury, the ultimate burden in proving the existence of a "grave" injury rests squarely with the party seeking indemnity or contribution).

In order to be granted summary judgment in the absence of a "grave" injury or a contract specifying indemnification, the cases hold that once movant meets his or her burden of establishing the absence of a "grave" injury, the opponent must come forward with admissible evidence indicating that there is a triable issue of fact on the issue of "grave" injury. Colon v. Belmont Realty Company, 290 A.D.2d 218 (1st Dept. 2002); Flores v. The Lower East Side Service Center, 3 A.D.2d 459 (1st Dept. 2004); Abdelaal v. Gindi, 2004 N.Y. Slip Op. 05175 (2nd Dept. 2004).

In Fitzpatrick v. Chase Manhattan Bank 285 A.D.2d 487 (2nd Dept. 2001), the Court granted movant's motion seeking summary judgment on the third-party complaint because, after third-party defendant had established the absence of a grave" injury, third-party plaintiff failed to show that the plaintiff had a "grave" injury as defined by the statute. The Court held that "the third-party defendant met its burden of proving, by competent admissible evidence, that the plaintiff's injuries, although clearly serious, did not rise to the level of 'grave' injuries, within the meaning of Workers' Compensation Law §11." Id. at 487. In granting the motion the Court further stated that "[i]n opposition to the motion the appellant Biordi...failed to demonstrate the existence of genuine issues of fact." Id. at 488.

In Barbieri v. Mount Sinai Hospital, 264 A.D.2d 1 (1st Dept. 2000), the Court granted summary judgment in favor of the third-party defendant (movant) after concluding that movant established that the plaintiff did not have a serious injury as defined by the statute. In that action, third-party plaintiff (opponent) opposed the motion submitting that the pleadings, specifically the bill of particulars and the complaint, established that the plaintiff had sustained a serious injury pursuant to the statute (emphasis added). Id. Specifically, the opponent stated that the plaintiff's injuries, facial lacerations and cognitive injuries, were akin to "permanent and severe facial disfigurement" and "injury to the brain caused by an external physical force resulting in permanent total disability." (Emphasis added). Id. In essence, opponent sought to have the Court deviate from applying the statute in its literal sense. Instead, opponent sought to have the Court interpret the words in the statute. The Court declined to apply the statute in anything other than its plain and narrow meaning. The Court reasoned that the injuries as pled, were not the "grave" injuries enumerated under the statute. In analyzing that case, the Court held that facial lacerations were alleged and not facial disfigurement as mandated by the statute. Id. With respect to the brain injury, the Court held that the cognitive injuries alleged were not alleged to have been permanent and totally disabling as required by the statute. Id.

Time and time again, the Court has demonstrated its refusal to deviate from the literal, [*5]narrow and plain meaning of "grave" injury as it applies to the Workers' Compensation Law. In Marvin Castro v. United Container Group, Inc., 96 N.Y2d 398, 492 (2001), The Court held that a plaintiff who lost multiple finger tips did not have a "grave" injury under the statute. Id. The Court held that the loss of portions of plaintiff's fingers was not the "loss of multiple fingers" under the statute. Id. In Weaver v. Greenlee Textron, Inc., 2001 N.Y. Slip Op. 40085(U) (Supreme Court Madison County), the Court held that total loss of sensation in a finger was not akin to the "loss of multiple fingers" under the statute. Id. In Ibarra v. Equipment Control , Inc. 268 A.D.2d 13 (2nd Dept. 2000), the Court held that claim in plaintiff's bill of particulars that he had suffered loss of vision and use in one eye, was not akin to "total and permanent blindness" as promulgated in the statute. Id.

Deficient Pleadings and Summary Judgment

A deficiency in a party's pleadings can at times be fatal while at other times the Court is well within its discretion to grant an amendment. In fact the CPLR has abolished the technical rules of pleadings and now holds that the pleadings need only provide the facts intended to be proven and the material elements of an action. Brodsky v. Nerud, 68 A.D.2d 876 (2nd Dept. 1979). The law further holds that a party may amend his or her pleadings at virtually anytime provided, inter alia, that the party opposing such amendment suffers no prejudice. Dolan v. Garden City Union Free School District, 113 A.D.2d 781 (2nd Dept. 1935); Barry v. Niagra Frontier Transit System, 38 A.D.2d 878 (4th Dept. 1972).

In the context of summary judgment motions, a party's failure to articulate a cause of action in his or her pleadings does not give rise to an automatic grant of summary judgement against that party. Alvord and Swift v. Stewart m. Muller Construction Company, 46 N.Y.2d 276 (1978). This is specially true in cases where an opponent to summary judgment establishes a viable cause of action despite not having properly pled the same. Id.

Discussion

The Court finds Gloria and Zepke's failure to plead that the plaintiff had a "grave" injury within the third-party summons and complaint is not a defect which, in it of itself, requires dismissal. Despite the exclusion of the term "grave" injury, Butler, by virtue of the third-party summons and complaint, had due notice of the facts and elements underlying this action. They knew that the cause of action arose out of plaintiff's accident and they knew the extent of their involvement in this action. Accordingly, this Court is not inclined to dismiss Gloria and Zepke's action based on the deficiency of their pleadings.

In this action, Butler alleges that a review of plaintiff's bill of particulars and the injuries pled therein reveals that none of the injuries pled by plaintiff fall within the ambit of "grave" injuries as listed in Workers' Compensation Law §11. Further, Butler asserts that a review of plaintiff's deposition transcript, specifically the portions delineating the injuries sustained, reveals that plaintiff's injuries are not "grave" as defined by the statute. Lastly, Butler submits that numerous portions of plaintiff's medical records[FN2] do not indicate that plaintiff is [*6]afflicted by any of the injuries termed as "grave" by the statute.

After a review of all items just listed, the Court concurs with Butler. While plaintiff's injuries are serious and involve fractures and injuries to multiple body parts, they do not fall into any of the categories listed under the statute.

First, the injuries as pled do not fall within the statute. The Court focuses on the two injuries which Gloria and Zepke allege are pled and do qualify under the statute as "grave" injuries. Those injuries are the facial lacerations and cognitive injuries sustained by plaintiff. These injuries as pled are not cognizable by the statute as demonstrated by the cases cited above.

Second, The injuries as testified to by plaintiff do not fall within the statute. The Court in reviewing the injuries alleged by plaintiff at his deposition cannot find that the injuries as testified to, constitute "grave"injuries. Plaintiff alleges that he sustained fractures to his leg necessitating surgery, an injury to his shoulder, and a head injury requiring the insertion of a metal. plate. These injuries as described do not fall within the statute.

Third, The Court examined plaintiff's medical records which, not admissible as evidence, serve to clarify the issues nonetheless. The medical records simply corroborate plaintiff's deposition testimony with respect to his injuries. The Court finds that the medical records, do not indicate that the plaintiff has a "grave" injury. Accordingly, The Court finds that Butler has met the burden of establishing that the plaintiff did not sustain a "grave" injury. Consequently, it is incumbent on Gloria and Zepke to raise a triable issue of fact on the issue of "grave" injury if summary judgment is to be averted.

Gloria and Zepke while submitting opposition to the motion, have nevertheless failed to raise a triable issue of fact with respect to the "grave" injury issue. In opposing the motion for summary judgment, Gloria and Zepke assert that plaintiff's injuries as pled in his bill of particulars indicate that plaintiff sustained "grave" injuries. Specifically, they assert that plaintiff's claim that he sustained "facial lacerations" and "brain damage and dysfunction" is akin to "permanent and severe facial disfigurement" and "injury to the brain caused by an external physical force resulting in permanent total disability." Goria and Zepke do not oppose Butler's motion on any other ground nor do they proffer any other evidence to rebut the claims made by Butler in support of summary judgment. This case is analogous to Barbieri v. Mount Sinai Hospital, 264 A.D.2d 1 (1st Dept. 2000). For the very same reasons that the Court in Barbei granted summary judgment, this Court is compelled to do the same. The injuries listed in plaintiff's bill of particulars are not cognizable "grave" injuries. Accordingly, this Court finds that Goria and Zepke have failed to raise a triable issue of fact sufficient to defeat summary judgment. The Court finds that plaintiff did not sustain a "grave" injury and as such his employer Butler cannot be sued for his injuries by Gloria and Zepke. This Court hereby grants summary judgment in favor of Butler and summarily dismisses the third-party summons and complaint.

Butler is directed to serve a copy of this decision and the accompanying Order, with notice of entry, upon all parties by certified mail within twenty-five (25) days hereof.

This constitutes this Court's decision and Order.

Dated: July 6, 2004___________________ [*7]

Bronx, New YorkNelson S. Roman, J.S.C. Footnotes

Footnote 1: While this case has been criticized by subsequent decisions, it nevertheless is probative on the issue of "grave" injury. The case has been criticized because it seeks to carve out an exception to the law on summary judgment in cases involving the Workers' Compensation Law. The Court in this case puts the burden on the opponent of a summary judgement motion to prove that a "grave" injury exists even when the proponent seeking summary judgement fails to make a showing that there is an absence of a "grave" injury. see, Fitzpatrick v. Chase Manhattan Bank 285 A.D.2d 487 (2nd Dept. 2001)

Footnote 2: The Court acknowledges that the medical records are not in admissible form. While the Court's decision is based on the plaintiff's bill of particulars and plaintiff's deposition transcript, a review of the medical records serves to further indicate that plaintiff's injuries may very well be serious, but they are not "grave" as recognized by the statute.