The Court finds GS and ZG Inc.’s failure to plead that the plaintiff had a grave injury within the third-party summons and complaint is not a defect which, in it of itself, requires dismissal. Despite the exclusion of the term grave personal injury, JB, by virtue of the third-party summons and complaint, had due notice of the facts and elements underlying this action. They knew that the cause of action arose out of plaintiff’s accident and they knew the extent of their involvement in this action. Accordingly, this Court is not inclined to dismiss GS and ZG Inc.’s action based on the deficiency of their pleadings.
In this action, JB alleges that a review of plaintiff’s bill of particulars and the injuries pled therein reveals that none of the injuries pled by plaintiff fall within the ambit of grave injuries as listed in Workers’ Compensation Law §11. Further, JB asserts that a review of plaintiff’s deposition transcript, specifically the portions delineating the injuries sustained, reveals that plaintiff’s injuries are not grave as defined by the statute. Lastly, JB submits that numerous portions of plaintiff’s medical records do not indicate that plaintiff is afflicted by any of the injuries termed as grave by the statute.
After a review of all items just listed, the Court concurs with JB. While plaintiff’s injuries are serious and involve fractures and injury to multiple body parts, they do not fall into any of the categories listed under the statute.
First, the injuries as pled do not fall within the statute. The Court focuses on the two injuries which GS and ZG Inc. allege are pled and do qualify under the statute as grave injuries. Those injuries are the facial lacerations and cognitive injuries sustained by plaintiff. These injuries as pled are not cognizable by the statute as demonstrated by the cases cited above.
Second, the injuries as testified to by plaintiff do not fall within the statute. The Court in reviewing the injuries alleged by plaintiff at his deposition cannot find that the injuries as testified to, constitute grave injuries. Plaintiff alleges that he sustained fractures to his leg necessitating surgery, an injury to his shoulder, and a head injury requiring the insertion of a metal plate. These injuries as described do not fall within the statute.
Third, The Court examined plaintiff’s medical records which, not admissible as evidence, serve to clarify the issues nonetheless. The medical records simply corroborate plaintiff’s deposition testimony with respect to his injuries. The Court finds that the medical records do not indicate that the plaintiff has a grave injury. Accordingly, The Court finds that JB has met the burden of establishing that the plaintiff did not sustain a grave injury. Consequently, it is incumbent on GS and ZG Inc. to raise a triable issue of fact on the issue of grave injury if summary judgment is to be averted.
GS and ZG Inc. while submitting opposition to the motion have nevertheless failed to raise a triable issue of fact with respect to the grave injury issue. In opposing the motion for summary judgment, GS and ZG Inc. assert that plaintiff’s injuries as pled in his bill of particulars indicate that plaintiff sustained grave injuries. Specifically, they assert that plaintiff’s claim that he sustained facial lacerations and brain damage and dysfunction is akin to permanent and severe facial disfigurement and injury to the brain caused by an external physical force resulting in permanent total disability. Goria and ZG Inc. do not oppose JB’s motion on any other ground nor do they proffer any other evidence to rebut the claims made by JB in support of summary judgment. This case is analogous to Barbieri v. Mount Sinai Hospital. For the very same reasons that the Court in Barbieri granted summary judgment, this Court is compelled to do the same. The injuries listed in plaintiff’s bill of particulars are not cognizable grave injuries.
Accordingly, this Court finds that GS and ZG Inc. have failed to raise a triable issue of fact sufficient to defeat summary judgment. The Court finds that plaintiff did not sustain a grave injury and as such his employer JB cannot be sued for his injuries by GS and ZG Inc. This Court hereby grants summary judgment in favor of JB and summarily dismisses the third-party summons and complaint.