Zucker v. Sheridan

• Citation: 686 N.Y.S.2d 611,179 Misc.2d 892
• Parties: , 1999 N.Y. Slip Op. 99,102 Sidney ZUCKER, Plaintiff, v. Gerald SHERIDAN, et al., Defendants and Third-Party Plaintiffs.
• Decision Date: 14 January 1999
• Court: New York Supreme Court

Page 611

686 N.Y.S.2d 611

179 Misc.2d 892, 1999 N.Y. Slip Op. 99,102

Sidney ZUCKER, Plaintiff, v. Gerald SHERIDAN, et al., Defendants and Third-Party Plaintiffs.

Supreme Court, Kings County.

Jan. 14, 1999.

Michael D. Hess, Corporation Counsel of New York City, Brooklyn (Kenneth A. Sack of counsel), for third-party defendant.

Herzfeld & Rubin, P.C., New York City (Clifford B. Aaron of counsel), for Toyota Motor Credit Corporation, defendant and third-party plaintiff.

Jacobson & Schwartz, Rockville Centre (Rhonda H. Barry of counsel), for Gerald Sheridan, defendant and third-party plaintiff.

Kulefsky & Becker, New York City, for plaintiff.

MARSHA L. STEINHARDT, J.

This is a motion brought on by third-party defendant, City of New York, for an order granting summary judgment as to it. A cross-motion, brought on by Toyota Motor Credit Corporation, seeking relief relative to various and sundry outstanding discovery demands was disposed of after oral argument. It is the contention of the moving party, herein, that the third-party complaint should be dismissed as it is barred by § 11 of the Workers' Compensation Law, as amended in 1996. The statute reads:

An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by any such 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 external physical force resulting in permanent total disability.

Worker' Compensation Law, § 11.

The City opines, and it is undisputed that, plaintiff did not suffer an injury specifically enumerated in the above-referenced section. In addition, the third-party defendant seeks dismissal of the third-party complaint based on a prior finding of this court that defendant, Gerard Sheridan, driver of the vehicle owned by co-defendant, Toyota Motor Credit Corporation, was sufficiently intoxicated at the time of the accident to be negligent as a matter of law and that said negligence was a proximate cause of the accident. (Summary judgment has previously been granted to plaintiff by order dated November 11, 1997.)

Defendants, on the other hand, contend that plaintiff's injuries are of so severe a nature as to be considered "grave" within the meaning of the law and that the City's actions, including, but not limited to, failing to safeguard the area in which plaintiff was working, constitute negligence and contributed to the happening of the accident.

The occurrence which brings these parties to court took place on June 15, 1997 when plaintiff, while performing his duties as an employee of the New York City Department of Transportation, was struck by a vehicle driven by defendant Sheridan. The work plaintiff was engaged in at the time of the accident was that of removing cones from a construction site on the Williamsburg Bridge. There was no barrier separating plaintiff from oncoming traffic. As a result of the impact plaintiff was taken to Bellevue Hospital. He underwent five separate surgical procedures on the day of the accident and at least two further operations subsequent thereto. Both of plaintiff's lower limbs sustained severe injury. The final prognosis is, at this time, uncertain, although...