FLAHERTY v. COLUMBO (2022)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered March 30, 2021, which, to the extent appealed from as limited by the briefs, denied third-party defendant/second third-party defendant Jackson Installation, LLC's motion for summary judgment dismissing the third-party complaints and any cross claims against it for common-law indemnification and contribution as premature, unanimously affirmed, without costs.

Plaintiff alleges that he sustained severe, permanent injuries while working at a construction site when the two individual defendants, employees of defendant Burgess, assaulted him.  Plaintiff commenced this action against numerous defendants, including the owner of the site and a subcontractor, TJM Construction, which then commenced third-party actions against plaintiff's employer, Jackson Installation.  Jackson Installation moved for summary judgment dismissing the third-party complaints against it on the ground that neither plaintiff nor the third-party plaintiffs alleged that plaintiff sustained a “grave injury” as a result of the incident, and therefore the claims were barred by the exclusivity provisions of the Workers Compensation Law.

The motion court properly denied Jackson Installation's motion because it failed to establish, prima facie through competent medical evidence, that plaintiff's alleged injuries were not “grave” injuries (Workers’ Compensation Law § 11;  see Santana v. MMF 1212 Assoc L.L.C., 190 A.D.3d 505, 506, 135 N.Y.S.3d 825 [1st Dept. 2021];  Congregation Nezach Israel v. ABGG Constr. Inc., 38 A.D.3d 332, 830 N.Y.S.2d 662 [1st Dept. 2007]).  The medical examination reports conducted for the Workers’ Compensation Board could not be relied upon by Jackson Installation to meet its burden, because it submitted them in reply (see Forbes v. New York City Tr. Auth., 88 A.D.3d 546, 547, 931 N.Y.S.2d 220 [1st Dept. 2011]).

In addition, TJM Construction's argument that it had not conducted discovery on the issue of plaintiff's medical condition was sufficient for the court to deny the motion as premature.  Plaintiff has pled an injury that may fall within the definition of a grave injury given that the complaint alleges that plaintiff has been “permanently physically incapacitated” as a result of the incident (see CPLR 3212[f];  Altonen v. Toyota Motor Credit Corp., 32 A.D.3d 342, 343–344, 820 N.Y.S.2d 263 [1st Dept. 2006]).

The absence of the term “grave injury” in the third-party complaints, in and of itself, does not require a finding in Jackson Installation's favor on this issue because the allegations of the third-party complaints provide sufficient notice to Jackson Installation that plaintiff suffered an injury that could arguably be characterized as a “grave injury” under Workers’ Compensation Law § 11 and Jackson Installation raised the issue as an affirmative defense in its answer to the second third-party complaint (see Giblin v. Pine Ridge Log Homes, Inc., 42 A.D.3d 705, 706, 840 N.Y.S.2d 196 [3d Dept. 2007]).