| Lopez v Gem Gravure Co. |
| 2004 NY Slip Op 50055(U) |
| Decided on February 13, 2004 |
| Supreme Court, Kings County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
ANTONIO LOPEZ, Plaintiff,
against GEM GRAVURE CO., THE GEON COMPANY, MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., LAU INDUSTRIES, INC. and GRAINGER INDUSTRIAL, BREEN COLOR CONCENTRATES, INC., SILOGRAM LUBRICANTS CORP., and SUPERFLEX MANAGEMENT, L.L.C., Defendants. GEM GRAVURE CO., THE GEON COMPANY MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., a division of LAU INDUSTRIES, INC. s/h/a BARRY BLOWER, INC. LAU INDUSTRIES, INC. and W.W. GRAINGER, INC., s/h/a GRAINGER INDUSTRIAL, Third-Party Plaintiffs, SUPERFLEX EQUITY, LLC and SUPERFLEX LIMITED, Third-Party Defendants. GEM GRAVURE CO., THE GEON COMPANY, MATTHEWS INTERNATIONAL CORP., SPARTECH POLYCOM. WILLET LIMITED, TADIR AIR, INC. n/k/a TADIR AIR CONDITIONING, INC., McQUAY INTERNATIONAL as Successor in Interest to SYNDER GENERAL, BARRY BLOWER, INC., a division of LAU INDUSTRIES, INC. s/h/a/ BARRY BLOWER, INC. LAU INDUSTRIES, INC.and W.W. GRAINGER, INC., s/h/a GRAINGER INDUSTRIAL, Second-Third-Party Plaintiffs, SUPERFLEX MANAGEMENT LLC., Second Third-Party Defendants. |
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."
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. [*4]
This shall constitute the Decision and Order of the Court.
February 13, 2004
J.S.C.
Decision Date: February 13, 2004