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[T] Lopez v. Cem Gravure Co.2/13/2004
UNPUBLISHED
This opinion is uncorrected and will not be published in the printed Official Reports.
Plaintiff is a former employee of third party defendant Superflex Limited ("Superflex"). Plaintiff brought this personal injury action alleging he had been injured by exposure to chemicals while working in Superflex's factory. Plaintiff named as defendants twelve companies that manufacture inks, resins or ventilation systems that were allegedly used in the factory. Ten of these defendants brought third party actions seeking contribution or indemnity from Superflex. Superflex moves to dismiss the third party complaint on the grounds that Plaintiff did not suffer a "grave injury" within the meaning of section 11 of the Workers' Compensation Law.
Section 11 of the Workers' Compensation Law states in part:
"An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability."
In this case the third party plaintiffs argue that the plaintiff's injury, a bi-lateral kidney failure is a terminal condition and, therefore, plaintiff is dead for purposes of the statute.
It is well-settled that the list of grave injuries is to be strictly construed (Castro v. United Container Machinery Group, Inc. 96 N.Y.2d 398). The interpretation requested by the third party plaintiffs would result in an impermissible expansion of the "grave injury" category. The third party plaintiffts' argument that this motion is premature because the plaintiff has not been examined by an independent medical expert is also without merit. Plaintiff's appearance at a medical exam would only confirm that he is alive. Accordingly, the Superflex's motion is granted and the third party complaint, cross claims and counterclaims asserted against Superflex are dismissed.
This shall constitute the Decision and Order of the Court.
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