Aguirre v. Castle American Construction

307 A.D.2d 901, 762 N.Y.S.2d 913, 2003 N.Y. App. Div. LEXIS 8567

Opinion

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated June 11, 2002, which granted the third-party defendant’s motion for summary judgment dismissing the third-party complaint, and denied its cross motion for summary judgment on the third-party complaint.

Ordered that the order is affirmed, with costs.

The third-party defendant met its burden of proving, through its submission of the amended verified complaint, verified bills of particulars, and the affidavit of the plaintiff Jorge Aguirre (hereinafter the plaintiff) (see Ibarra v Equipment Control, 268 AD2d 13 [2000]; Barbieri v Mount Sinai Hosp., 264 AD2d 1 [2000]), that the plaintiff’s injuries, although serious, did not rise to the level of “grave” injuries within the meaning of Workers’ Compensation Law § 11 (see Castro v United Container Mach. Group, 96 NY2d 398 [2001]). The defendant third-party plaintiff’s admissions in its reply papers and on appeal that the plaintiff has some movement in his arm defeat its claim that the plaintiff sustained a permanent and total loss of use of that arm as required under Workers’ Compensation Law § 11 (see Meis v ELO Org., 97 NY2d 714 [2002]). Altman, J.P., Goldstein, McGinity and Mastro, JJ., concur.