Sexton v. Cincinnati Inc.

Appellate Division of the Supreme Court of New York

Sexton v. Cincinnati Inc.

2 A.D.3d 1408, 769 N.Y.S.2d 773, 2003 N.Y. App. Div. LEXIS 14405

Appellate Division of the Supreme Court of the State of New York·Decided December 31, 2003·Published·Cited by 4 cases

Opinion

Appeal from that part of an order of Supreme Court, Chautauqua County (Gerace, J.), entered February 3, 2003, that denied the motion of third-party defendant seeking summary judgment dismissing the third-party complaints.

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

Memorandum: Supreme Court properly denied the motion of third-party defendant, Phoenix Metal Fabricating, Inc. (Phoenix), seeking summary judgment dismissing the third-party complaints. Plaintiff commenced these actions to recover damages for injuries he sustained during the course of his employment with Phoenix when his hands were crushed by a 90-ton press brake machine, and defendants commenced the third-party actions at issue herein. In support of its motion, Phoenix contended that, as a matter of law, plaintiff did not sustain a grave injury within the meaning of Workers’ Compensation Law § 11 (see Castro v United Container Mach. Group, 96 NY2d 398 [2001]). Even assuming, arguendo, that Phoenix met its initial burden, we conclude that defendants-third-party plaintiffs raised an issue of fact whether plaintiff sustained a loss of use of his hands that is “permanent and total” and thus whether he sustained a grave injury within the meaning of the statute (Workers’ Compensation Law § 11; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). They submitted [1410] the affidavit of their medical expert, who determined that plaintiff has not retained even minimal use of his hands (cf. Trimble v Hawker Dayton Corp., 307 AD2d 452 [2003]). Although Phoenix presented evidence that plaintiff is able to perform certain limited activities with his hands, the medical expert for defendants-third-party plaintiffs stated in his affidavit that plaintiff actually performs those activities with his arms, using the adaptive techniques of an amputee. Present—Pine, J.P., Wisner, Scudder, Gorski and Lawton, JJ.

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Appeal from that part of an order of Supreme Court, Chautauqua County (Gerace, J.), entered February 3, 2003, that denied the motion of third-party defendant seeking summary judgment dismissing the third-party complaints.

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

Memorandum: Supreme Court properly denied the motion of third-party defendant, Phoenix Metal Fabricating, Inc. (Phoenix), seeking summary judgment dismissing the third-party complaints. Plaintiff commenced these actions to recover damages for injuries he sustained during the course of his employment with Phoenix when his hands were crushed by a 90-ton press brake machine, and defendants commenced the third-party actions at issue herein. In support of its motion, Phoenix contended that, as a matter of law, plaintiff did not sustain a grave injury within the meaning of Workers’ Compensation Law § 11 (see Castro v United Container Mach. Group, 96 NY2d 398 [2001]). Even assuming, arguendo, that Phoenix met its initial burden, we conclude that defendants-third-party plaintiffs raised an issue of fact whether plaintiff sustained a loss of use of his hands that is “permanent and total” and thus whether he sustained a grave injury within the meaning of the statute (Workers’ Compensation Law § 11; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). They submitted [1410] the affidavit of their medical expert, who determined that plaintiff has not retained even minimal use of his hands (cf. Trimble v Hawker Dayton Corp., 307 AD2d 452 [2003]). Although Phoenix presented evidence that plaintiff is able to perform certain limited activities with his hands, the medical expert for defendants-third-party plaintiffs stated in his affidavit that plaintiff actually performs those activities with his arms, using the adaptive techniques of an amputee. Present—Pine, J.P., Wisner, Scudder, Gorski and Lawton, JJ.

Sexton v. Cincinnati Inc., 2 A.D.3d 1408, 769 N.Y.S.2d 773, 2003 N.Y. App. Div. LEXIS 14405 (N.Y. Ct. App. 2003).

Pincite

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