The Appellate Division, Second Department decision Benedetto v. Carrera Realty Corp. provides one more example of what constitutes a "grave injury" under Workers' Compensation Law sec. 11. Section 11, as amended, does not allow third parties to implead an injured worker's employer unless one of the two exceptions set forth in the statute applies. The exception involved in Benedetto is where the worker sustains a "grave injury." As the New York Court of Appeals has discussed in the past, these injuries are narrowly defined (see here and here).
The Second Department in Benedetto held that third-party plaintiff's motion to dismiss the third-party plaintiff's affirmative defense that claimed that the injured work did not sustain a grave injury should have been granted. In concluding that the third-party plaintiff demonstrated that the injured worker sustained a "total loss of . . . of [a] foot," the Second Department stated:
There is no dispute that the plaintiff cannot use his feet at all, is confined to a wheelchair, and can ambulate only with the use of crutches and braces by dragging his lower body and using his upper body for support. The report of [the third-party defendant's] expert, while expressing a belief that the plaintiff will improve to the point where he can become a household and community ambulator, did not dispute the plaintiff's total loss of the use of his feet"
This is one of the first cases in which I have seen the use of this particular "grave injury."
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