CHAVEZ v. DELTA INTERNATIONAL MACHINERY CORP (2019)

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by third-party defendant dated July 30, 2018, and supporting papers; (2) Affirmation in Opposition by third-party plaintiff dated September 14, 2018, and supporting papers; (3) Supplemental Affirmation in Opposition by third-party plaintiff dated November 1, 2018, and supporting papers; (4) Affirmation in Opposition by plaintiff dated December 31, 2018, and supporting papers; (5) Reply Affirmation to Opposition by Third-Party Plaintiff by third-party defendant dated October 26, 2018; and (6) Reply Affirmation to Plaintiff's Opposition and Defendant/Third-Party Plaintiff's Supplemental Opposition dated February 5, 2019, and supporting papers, it is

ORDERED, that third-party defendant Anthony's Custom Closets, Inc.'s motion for summary judgment, pursuant to CPLR § 3212, is DENIED.

This is an action to recover damages for personal injuries sustained by plaintiff Hugo Chavez on March 3, 2010, while using a table saw to cut a length of wood at the Yaphank, New York premises of his employer, third-party defendant Anthony's Custom Closets, Inc.(“Anthony's). Plaintiff alleges that when he put his left hand around the back of the blade of the saw to catch a piece of the wood that he had cut, the blade kicked the wood backwards, pulling his left hand into the blade. As a result, plaintiff sustained serious injuries to his left hand, including amputation of both his left middle finger and his ring finger. Plaintiff commenced an action against defendants sounding in negligence, strict products liability, design defect and breach of warranty. Defendant-third-party plaintiff Delta International Machinery Corp. (“Delta”) commenced a third-party action against Anthony's. Anthony's now moves for summary judgment dismissing the third-party complaint on the ground that plaintiff did not sustain a “grave injury” as defined in Worker's Compensation Law § 11.

In support of its motion, Anthony's proffers, inter alia, copies of the pleadings, a report, dated April 19, 2018, of a physical examination of plaintiff conducted on that date on behalf of Anthony's by Dr. Teresa Habacker, a portion of the plaintiff's worker's compensation file, the transcript of plaintiff's deposition testimony, plaintiff's response to interrogatories propounded by Delta and a photograph of plaintiff's left hand.

In opposition to the motion, counsel for Delta proffers an operative report from Stony Brook Hospital; a report, dated February 14, 2012, of an independent medical examination of plaintiff's left hand performed by Dr. Jerry L. Ellstein in connection with plaintiff's Worker's Compensation claim; and another copy of the transcript of plaintiff's deposition testimony. Plaintiff, who also opposes Anthony's motion, proffers both Dr. Ellstein's report and the report of a November 13, 2018 physical examination of his left hand performed at his request by Dr. Salvatore R. Lenzo.

There is no dispute that plaintiff's medical records reflect that he sustained injuries to four of the fingers on his left hand: a laceration to his left thumb, a fracture to his left index finger and the amputation of his left middle and ring fingers. There is also no dispute that on March 3, 2010, replantation surgery was performed on plaintiff's left ring finger and open reduction and pin fixation of his left index finger; that on October 25, 2010, a debridement of an osteophyte was performed on his left index finger; and that over a year after the accident, on May 3, 2011, post-traumatic neuromas were excised from plaintiff's left index and middle fingers. Based upon “the history” provided to her by plaintiff and the physical examination she conducted, Dr. Habacker concluded that plaintiff has suffered “a complete loss of only one digit” - his middle finger, which had sustained “amputation through the proximal phalanx constituting a 100% loss” of that finger. With respect to the injuries to the three other fingers, Dr. Habacker found that those injuries either were “minor” - left thumb - or that there had been “replantation ․ with an excellent functional result” - left index and ring fingers. Anthony's argues that as the list of finger-related injuries that qualify as a “grave injury” includes the loss of an index finger or the loss of multiple fingers, and as plaintiff suffered neither, he has not, as a matter of law, sustained a “grave injury” as defined in Worker's Compensation Law § 11.

It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented (see Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923 [1986]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ․ and must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (see Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).

Section 11 of the New York Worker's Compensation Law provides, in relevant 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.

New York Worker's Compensation Law § 11 (emphasis added).

The Court of Appeals has held that the term “loss of multiple fingers” as used in the statute does not mean partial loss of multiple fingers (Castro v United Container Mach. Group, 96 NY2d 398, 736 NYS2d 287 [2001]; see Blackburn v Wysong & Miles Company, 11 AD3d 421, 783 NYS2d 609 [2d Dept 2004]). Since Anthony's has proffered evidence, including a medical opinion, that plaintiff suffered a complete loss of only one finger, it has therefore sufficiently made a prima facie showing of entitlement to judgment as a matter of law on the issue of whether plaintiff sustained a “grave injury” as that term is defined by the Worker's Compensation Law.

The burden thus shifted to Delta to raise a triable issue of fact as to whether plaintiff has sustained a grave injury. Although in response to plaintiff's submission, Anthony's seems to argue that plaintiff somehow has partial use of his left middle finger, any such contention is contradicted by the opinion of Anthony's own designated expert, Dr. Habacker, that plaintiff sustained “a complete loss - “a 100% loss” - of use of that finger. The issue, then, centers on whether plaintiff also suffered a loss of his left ring finger. Both plaintiff and Delta claim that plaintiff has suffered a total loss of use of his left ring finger and, therefore, has “lost” that finger within the meaning of Worker's Compensation Law § 11. Plaintiff testified that he does not have use of his left ring finger; that he cannot bend it, and that it is “always straight.” In the report of his independent medical examination of plaintiff, Dr. Ellstein noted, with respect to plaintiff's left ring finger, that although “there are healed scars on that digit with maintained motion at the metacarpophalangeal joint,” there is “no active motion of proximal or distal interphalangeal joints” (emphasis added), and he categorized the loss of use of that finger as 100%. Likewise, Dr. Lenzo, plaintiff's expert, reports that while plaintiff has 0-45 degrees of motion in the metacarpophalangeal joint of his left ring finger, the proximal interphalangeal joint, proximate to where the replantation was made, “is fixed at an angle of approximately 10 degrees of flexion” and that although there is a small, passive range of motion of the distal interphalangeal joint of from 0-10 degrees, plaintiff has no active flexion of that joint. Thus, according to Dr. Lenzo, plaintiff “cannot flex the ring finger at all and it sticks out directly, essentially nonfunctional.” He goes on to say that, based upon his findings, plaintiff “has suffered a grave injury despite the surgery that he underwent. He cannot do precision things with regard to the left hand or do any heaving lifting either in light of the deformity, especially within the ring finger.” (All emphasis supplied.)

In a case involving the amputation and subsequent surgical reattachment of two fingers, the First Department held that “because the fingers and their use were not permanently and totally lost, plaintiff did not sustain a “grave injury” within the meaning of Workers' Compensation Law § 11” (Vincenty v Cincinnati Inc., 14 AD3d 392, 392, 788 NYS2d 92 [1st Dept 2005] (emphasis added), see Bradt v Lustig, 280 AD2d 739, 721 NYS2d 114 [3d Dept 2001]). It follows that if it a plaintiff permanently suffered a total loss of use of his or her fingers following amputation notwithstanding physical replantation, this would constitute a loss of the finger for purposes of Workers' Compensation Law § 11. The term “loss of use” has been interpreted to mean loss of functional use (see Trimble v Hawker Dayton Corporation, 307 AD2d 452, 453, 761 NYS2d 409, 410 [3d Dept 2003] (court found no total loss of use when plaintiff retained some use of his right hand); Mustafa v Halkin Tool, Ltd., ––– F.Supp.2d ––––, 2004 WL 2011384 [EDNY 2004] (slight movement in plaintiff's left hand did not add up to functional use). “[A] capacity for mere movement falling short of functional use does not negate a claim of ‘permanent and total loss of use’ ” (Mustafa v Halkin Tool, Ltd., supra at p.7; see Sexton v Cincinnati, Inc., 2 AD3d 1408, 769 NYS2d 773 [4th Dept 2003] (plaintiff performed limited activities with his hands by using his arms and applying the adaptive techniques of an amputee); Balaskonis v HRH Construction Corp., 1 AD3d 120, 767 NYS2d 9 [1st Dept 2003] (triable issue found as to whether plaintiff retained only passive movement of his hand and arm); Millard v Alliance Laundry Systems, LLC, 28 AD3d 1145, 814 NYS2d 433 [4th Dept 2006] (total loss of use found when plaintiff maintained only passive use of his left arm). If, as Delta contends, plaintiff's left ring finger was replanted without restoration of at least partial functional use of that finger, then the replantation was merely cosmetic and plaintiff effectively lost his finger when it was amputated as a result of the March 3, 2010 workplace accident.

In light of the foregoing, the court finds that there is a triable issue of fact as to whether plaintiff has lost the functional use of his left ring finger sufficiently to constitute the loss of that finger within the meaning of Workers' Compensation Law § 11 and, therefore, as to whether, when considered in conjunction with plaintiff's loss of his left middle finger, plaintiff has sustained a “grave injury” within the meaning of Workers' Compensation Law § 11. Accordingly, the motion of third-party defendant Anthony's Custom Closets, Inc. for summary judgment is denied.

The court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.

The foregoing constitutes the decision and order of the court.

Sanford Neil Berland, J.