KNAUER v. ANDERSON

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

Thomas KNAUER, Plaintiff-Respondent, v. Diane L. ANDERSON, as Executrix of the Estate of William F. Anderson, Sr., Deceased, et al., Defendants.

Diane L. Anderson, as Executrix of the Estate of William F. Anderson, Sr., Deceased, B.T.S. Services, Inc., Third-Party Plaintiffs-Respondents, et al., Third-Party Plaintiff, v. Ronald A. Knauer, Jr., Doing Business as Knauer Electric, Third-Party Defendant-Appellant.  (Appeal No. 4.).

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, HURLBUTT, AND GORSKI, JJ. Underberg & Kessler LLP, Buffalo (Michael J. Hutter of Counsel), for Third-Party Defendant-Appellant. Connors & Vilardo, LLP, Buffalo (John T. Loss of Counsel), for Plaintiff-Respondent. Donald N. Fries, Williamsville, for Third-Party Plaintiff-Respondent Diane L. Anderson, as Executrix of the Estate of William F. Anderson, Sr., Deceased. Gibson, McAskill & Crosby, LLP, Buffalo (Norman B. Viti, Jr., of Counsel), for Third-Party Plaintiff-Respondent B.T.S. Services, Inc.

Third-party defendant, Ronald A. Knauer, Jr., doing business as Knauer Electric (Knauer Electric), appeals from a judgment that incorporated by reference a prior order granting the motions of defendants-third-party plaintiffs Diane L. Anderson, as executrix of the estate of William F. Anderson, Sr., deceased, and B.T.S. Services, Inc. (defendants) seeking, inter alia, a directed verdict on common-law indemnification against Knauer Electric.   The substantive issue in connection with the motion for a directed verdict was whether plaintiff sustained a grave injury within the meaning of Workers' Compensation Law § 11.

 We note at the outset that Knauer Electric took appeals from three orders as well as from the judgment, but it perfected only the appeal from the judgment.   The appeals from the three orders have been automatically dismissed as abandoned pursuant to 22 NYCRR 1000.12(b).  Dismissal of an appeal for want of prosecution is “on the merits of all claims which could have been litigated had the appeal been timely argued or submitted” (Bray v. Cox, 38 N.Y.2d 350, 355, 379 N.Y.S.2d 803, 342 N.E.2d 575;  see also Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 754, 697 N.Y.S.2d 866, 720 N.E.2d 86).  “However, an appellate court has the authority to entertain a second appeal in the exercise of its discretion, even where a prior appeal on the same issue has been dismissed for failure to prosecute * * *, [and] even if [the appellate court] could have dismissed the appeal under Bray ” (Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864).   We exercise our discretion on this appeal from the judgment to review the propriety of the directed verdict on common-law indemnification even though Knauer Electric abandoned its separate appeal from the order granting that relief.

 Defendants sought indemnification based on their contention that plaintiff sustained a grave injury, defined in relevant part in Workers' Compensation Law § 11 as “an acquired injury to the brain caused by an external physical force resulting in permanent total disability.”   The statute does not define “permanent total disability,” and this Court has not previously addressed that precise issue.   Knauer Electric contends that we should follow the decision of the Second Department in Rubeis v. Aqua Club, 305 A.D.2d 656, 658, 761 N.Y.S.2d 659, wherein that Court determined that the term means total inability “to engage in day-to-day functions.”   Defendants contend, however, that the term means total disability from employment, relying on the decision of the Third Department in Way v. Grantling, 289 A.D.2d 790, 792, 736 N.Y.S.2d 424.   The list of injuries set forth in section 11 “ ‘is exhaustive, not illustrative;  it is not intended to be extended absent further legislative action’ ” (Castro v. United Container Mach. Group, 96 N.Y.2d 398, 402, 736 N.Y.S.2d 287, 761 N.E.2d 1014, quoting Governor's Mem. approving L. 1996, ch. 635, 1996 N.Y. Legis. Ann., at 460).   We agree with the analysis of the Third Department in Way, 289 A.D.2d at 792, 736 N.Y.S.2d 424 that evidence that a plaintiff has suffered the specified injury to the brain resulting in permanent total disability relates to his or her permanent total disability from employment, not to his or her “ability to otherwise care for himself or herself and function in a modern society.”   Thus, we conclude that Supreme Court properly directed a verdict for defendants on common-law indemnification.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: