VINCENTY v. ABCO

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Supreme Court, Appellate Division, First Department, New York.

Elvin VINCENTY, Plaintiff-Respondent, v. CINCINNATI INCORPORATED, Defendant-Respondent, ABCO Fire Door Company, Inc., Defendant-Appellant,

Wilfred Realty Corporation, Defendant. Cincinnati Incorporated, Third-Party Plaintiff-Respondent, v. ABCO Door Industries, Inc., Third-Party Defendant-Appellant-Respondent.

Decided: January 13, 2005

MAZZARELLI, J.P., MARLOW, ELLERIN, GONZALEZ, CATTERSON, JJ. Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellant-respondent. Furey & Furey, P.C., Hempstead (Valerie Froehlich of counsel), for appellant. Law Offices of Michael Weinberger, New York (Allan R. Pearlman of counsel), for Elvin Vincenty, respondent. Gerald Neal Swartz Law Offices, New York (Nancy Ledy-Gurren of counsel), for Cincinnati Incorporated, respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered August 2, 2004, which granted third-party defendant's motion for summary judgment dismissing the third-party complaint and cross claims against it, only insofar as to dismiss defendant ABCO Fire Door Company's cross claim on procedural grounds, unanimously modified, on the law, to grant the motion in its entirety, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment accordingly.

Plaintiff's pinky and ring fingers, although completely amputated in the underlying workplace accident, were shortly after the accident surgically reattached so that plaintiff regained their use, at least partially.   Accordingly, 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 (see Castro v. United Container Mach. Group, Inc., 96 N.Y.2d 398, 401, 736 N.Y.S.2d 287, 761 N.E.2d 1014 [2001];  Bradt v. Lustig, 280 A.D.2d 739, 741, 721 N.Y.S.2d 114 [2001], appeal dismissed 96 N.Y.2d 823, 729 N.Y.S.2d 442, 754 N.E.2d 202 [2001];  Minkowitz, Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 64, Workers' Compensation Law § 11, 2004 Pocket Part, at 80).   In the absence of a “grave injury,” neither the third-party complaint nor the purported cross claim against plaintiff's employer was viable.