It is well settled that employers are required to secure and provide a system of compensation for their employees in the event that they are hurt or killed as a result of injury sustained in their course of their employment. This compensation is provided to an employee without regard to fault. Id. If the employee provides for such compensation it is the employer’s exclusive liability in the event of an injury to an employee and it is an employee’s exclusive remedy against his employer. The right of compensation under this law is the employee’s exclusive remedy even if the injury is the result of the negligence of a co-worker.
On September 10, 1996, The New York Legislature amended the Workers’ Compensation Law. The amendment to §11 of the law specifically addressed third party actions against employers. Under the amended law, third party impleaders, against an employer who provides Workers’ Compensation coverage to his employees, are generally barred. The two exceptions are where there is (1) a contractual obligation specifically requiring the employer to indemnify the third party, or (2) when the employee has suffered a grave injury as defined and enumerated by the statute.
In defining grave injury the Worker’s Compensation Law, §11 states: 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.
Hence it is patently obvious and well settled that the definition of what constitutes a grave injury is limited to the injuries enumerated. Consequently, an injury sustained, no matter how serious, will not be considered grave for purposes of impleading an employer, unless said injury appears on the list.
The burden of proving that an injury is grave in order to maintain an action against an employer always rest with the party seeking indemnification or contribution from the employer.
In order to be granted summary judgment in the absence of a grave injury or a contract specifying indemnification, the cases hold that once movant meets his or her burden of establishing the absence of a grave injury, the opponent must come forward with admissible evidence indicating that there is a triable issue of fact on the issue of grave injury.
A deficiency in a party’s pleadings can at times be fatal while at other times the Court is well within its discretion to grant an amendment. In fact the CPLR has abolished the technical rules of pleadings and now holds that the pleadings need only provide the facts intended to be proven and the material elements of an action. The law further holds that a party may amend his or her pleadings at virtually anytime provided, that the party opposing such amendment suffers no prejudice.
In the context of summary judgment motions, a party’s failure to articulate a cause of action in his or her pleadings does not give rise to an automatic grant of summary judgment against that party. This is specially true in cases where an opponent to summary judgment establishes a viable cause of action despite not having properly pled the same. Id.
To Be cont…