Johnsen v. Massaro

2025 NY Slip Op 32792(U)

• Court: New York Supreme Court, New York County
• Decided: August 13, 2025
• Docket: Index No. 150638/2020
• Status: Unpublished

Opinion

Johnsen v Massaro 2025 NY Slip Op 32792(U) August 13, 2025 Supreme Court, New York County Docket Number: Index No. 150638/2020 Judge: Leslie A. Stroth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 08/14/2025 11:50 AM] INDEX NO. 150638/2020 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 08/14/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LESLIE A. STROTH PART 12M Justice --------------------------X 150638/2020 INDEX NO.

STEPHEN C. JOHNSEN, ROSE M. JOHNSEN, MOTION DATE 10/28/2024 Plaintiff, MOTION SEQ. NO. _ _ _0_0_1_ _ - V-

STEPHEN R. MASSARO, METRO INTERIOR DISTRIBUTORS CORP., THE CITY OF NEW YORK, CITY DECISION + ORDER ON OF NEW YORK POLICE DEPARTMENT, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, MOTION

Defendant. ------X

STEPHEN MASSARO, METRO INTERIOR DISTRIBUTORS Third-Party CORP. Index No. 595095/2024

Plaintiff,

-against-

E-J ELECTRIC INSTALLATION CO.

Defendant. ---·----------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 37, 38, 39, 40, 41, 42,43,44,45,46,47,48,49, 50, 51 were read on this motion to/for JUDGMENT - SUMMARY

FACTUAL AND PROCEDURAL BACKGROUND

This personal injury action arises from an accident on February 6, 2019, at the

intersection of East 59th Street and Third Avenue in Manhattan. Plaintiff Michael Johnsen

("Plaintiff'), an employee of Third-Party Defendant E-J Electric Installation Co. ("E-J"), was

working in an elevated bucket attached to an E-J truck while repairing a traffic light. The bucket

was allegedly struck by the exhaust pipe of a tractor-trailer owned by Defendant/Third-Party

Plaintiff Metro Interior Distributors Corp. ("Metro") and operated by Defendant/Third-Party

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Plaintiff Stephen R. Massaro ("Massaro"). Plaintiff claims the impact caused the bucket to jolt,

resulting in injuries to his knees, neck, shoulders, and spine.

Plaintiff was acting within the scope of his employment for E-J at the time of the incident

and received Workers' Compensation benefits. On January 25, 2024, Metro and Massaro

commenced a third-party action against E-J asserting claims for common-law indemnification

and contribution, alleging, inter alia, that E-J failed to properly train Plaintiff. E-J answered and

now moves for summary judgment dismissing the third-party complaint in its entirety on the

ground that Workers' Compensation Law§ 11 bars such claims absent a "grave injury," which is

not present here. The instant motion is unopposed.

Applicable Legal Standards

The proponent of a motion for summary judgment must tender sufficient evidence to

show the absence of any material issue of fact and the right to entitlement to judgment as a

matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 323 [ 1986]). Once a party has submitted

competent proof demonstrating that there is no substance to its opponent's claims and no

disputed issues of fact, the opponent, in turn, is required to "lay bare [its] proof and come

forward with some admissible proof that would require a trial of the material questions of fact on

which [its] claims rest" (Ferber v Sterndent Corp., 51 NY2d 782, 783 [ 1980]). The party

opposing a motion for summary judgment is entitled to all favorable inferences that can be

drawn from the evidence submitted (See Dauman Displays, Inc. v Masturzo, 168 AD2d 204, [1st

Dept 1990]).

Workers' Compensation Law§ 11 provides that an employer "shall not be liable for

contribution or indemnity to any third person" for injuries sustained by an employee acting

within the scope of employment unless the employee sustained a statutorily defined "grave

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injury.'' "Grave injury" is narrowly defined to include only the specific injuries enumerated in

the statute, such as death, total loss or use of a limb, paraplegia, blindness, deafness, or

permanent and severe facial disfigurement. The list is exhaustive and not subject to judicial

expansion (Castro v. United Container Mach. Group, Inc., 96 N.Y.2d 398, 402-403 [2001]).

Where the record establishes that plaintiff did not sustain a grave injury, and there is no

contractual indemnity agreement, common-law indemnification and contribution claims must be

dismissed as a matter of law (Noel v. 336 E 95th Realty, LLC, 227 A.D.3d 505 [1st Dept 2024];

Ruisech v. Structure Tone Inc., 208 A.D.3d 412, 417-418 [1st Dept 2022]).

DISCUSSION

E-J has met its prima facie burden. Plaintiffs Bill of Particulars, Supplemental Bill of

Particulars, deposition testimony, and the independent medical examination reports of Dr. Neil S.

Roth, Dr. Jeffrey M. Spivak, and Dr. Matthew Shatzer collectively demonstrate that Plaintiff did

not sustain any injury meeting the statutory definition of a "grave injury" under Workers'

Compensation Law § 11.

The enumerated injuries in the Bill of Particulars and Supplemental Bill of Particulars,

including bilateral knee meniscal tears, cervical radiculitis, lumbar radiculopathy, and shoulder

complaints, are not the types contemplated as "grave injury" under Workers' Compensation Law

§ 11. "Grave injuries" for under Workers Compensation Law§ 11 include death, total loss or use

of a limb, loss of an index finger, paraplegia, quadriplegia, blindness, deafness, permanent and

severe facial disfigurement, or any other category set forth in the statute. All three IME

physicians concluded that Plaintiff's complaints were largely attributable to preexisting

degenerative conditions and did not result in any permanent total disability within the meaning of

the statute.

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Here, the documentary evidence, bolstered by medical proof, leaves no doubt that the

grave injury exception does not apply.

Because Plaintiff was employed by E-J at the time of the accident and received Workers'

Compensation benefits, Workers' Compensation Law§ 11 bars the third-party claims for

common-law indemnification and contribution. Neither grave injury nor a contractual

indemnification agreement are present here, and as such the claims against E-J must be

dismissed.

As the motion is unopposed, and there is no evidence raising a material issue of fact.

dismissal is warranted.

Accordingly; it is hereby

ORDERED that the motion by Third-Party Defendant E-J Electric Installation Co. for

summary judgment pursuant to CPLR 3212 is granted in its entirety; and it is further

Ordered that the Third-Party Complaint of Metro Interior Distributors Corp. and Stephen

R. Massaro is dismissed with prejudice.

8/13/2025 DATE HON. -"--iriAiiiSJ"dtOTH CHECK ONE: CASE DISPOSED □ NON-FINAL DISPOSITION J.S.C. GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANS FER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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