Former defendant, PB, moved seeking summary judgment against all other parties. Thereafter, said defendant and all other parties stipulated to withdraw said motion. Pursuant to said stipulation, PB was substituted out of this action and the BC Inc. was added as a defendant. The current caption represents the substitution. Third-party defendant, JB, cross-moves seeking summary judgment and dismissal of the third-party complaint. JB claims that the instant Third-Party action is summarily bared by the Workers’ Compensation Law in that no contract for indemnification exists between JB and the Third-Party plaintiffs. In addition, JB, contends that plaintiff has not suffered a grave injury as defined by the Workers’ Compensation Law. Lastly, JB claims that the third-party complaint fails to plead that plaintiff suffered a grave injury, and as such the complaint is defective. Third-party plaintiffs GS and ZG Inc., oppose said motion alleging that plaintiff, within his bill of particulars, has asserted injuries which are considered grave under the Workers’ Compensation law. BC Inc. does not oppose the instant motion.
The instant action arises from an alleged fall off a roof. On November 15, 2001, plaintiff a roofer employed by JB was working at the premises owned or occupied by GS and located at New York. While not directly addressed or relevant to the instant motion, JB was apparently hired by BC Inc. who was allegedly hired by ZG Inc. to perform the work on the roof. Plaintiff alleges that while he was lowering debris/garbage from the roof, he fell off the roof which was twenty-five feet above the ground. Plaintiff suffered a litany of injuries and as a result he sued BC Inc., GS and ZG Inc. Specifically, and at issue in the instant motion, plaintiff’s bill of particulars alleges, that he sustained facial lacerations and cognitive brain injuries.
There are several facts which are beyond change and which are relevant and dispositive for the purposes of deciding the motion herein. Plaintiff worked for JB. JB had a Workers’ Compensation insurance policy in effect at the time of this accident. Plaintiff received Workers’ Compensation benefits from JB after this accident. There is no claim that JB was a party to any contracts whereby JB was to indemnify anyone for injuries resulting from the work described. GS and ZG Inc.’s basis for impleading JB is that the plaintiff suffered a grave injury.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. There is no requirement that the proof for said motion be submitted in affidavit form; rather, the requirement is that the evidence proffered be in admissible form. Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. The burden, however, always remains where it began, with the movant on the issue. Hence, if the evidence on the issue is evenly balanced, the party that bears the burden must loose.
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial
Accordingly, the Court’s function when determining a motion for summary judgment is issue finding and not issue determination. Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. When the existence of an issue of fact is even debatable, summary judgment should be denied.
To Be Cont…
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