Partner Dan McCally Obtains Dismissal of Third Party Action Based Upon Worker’s Compensation Law Section 11 and Failure to Prove “Grave Injury”

In an action venued in Supreme Court, Queens County, Partner Dan McCally obtained dismissal of the third party complaint upon a motion for summary judgment.  Plaintiff, a sanitation worker, was injured when he was thrown from the back of a garbage truck during the course of his employment.  The truck he was riding on was struck by another work truck.  He allegedly sustained a traumatic brain injury, in addition to injuries to his neck, back and shoulder.   Plaintiff commenced a lawsuit against the offending work truck, and driver.  The defendant/third party plaintiff  then initiated a third party action against our client, the sanitation company, alleging that the plaintiff sustained grave injuries in the accident.  On the eve of trial,  our motion for summary judgment based upon Worker’s Compensation Law Section 11 was granted.   We were awarded judgment dismissing the third party complaint for common law indemnification and contribution, successfully arguing that plaintiff did not sustain a grave injury as defined by the statute.  The issue was whether or not the plaintiff suffered an injury to the brain, caused by external force, resulting in permanent total disability.  Our client was awarded judgment and the third party action was dismissed.


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