Opinion
CA 03-00917.
November 21, 2003.
Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered September 17, 2002, which denied third-party defendant's motion seeking summary judgment dismissing the third-party complaint.
Osborn, Reed Burke, LLP, Rochester (Jeffrey M. Wilkens of Counsel), for Third-Party Defendant-Appellant.
Connors Corcoran, LLP, Rochester (Cheryl Loria-Dinolfo of Counsel), for Plaintiff-Respondent.
Hiscock Barclay, LLP, Rochester (Thomas B. Cronmiller of Counsel), for Third-Party Plaintiffs-Respondents.
Before: Present: Pine, J.P., Hurlbutt, Kehoe, Lawton, and Hayes, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of third-party defendant in part and dismissing the third-party complaint insofar as it alleges that plaintiff sustained a grave injury within the meaning of Workers' Compensation Law § 11 based on permanent and severe facial disfigurement and as modified the order is affirmed without costs.
Memorandum: Plaintiff, an employee of third-party defendant, Flower City Printing, Inc. (Flower City), sustained scalp and facial lacerations when her hair became caught in a drill press machine. Supreme Court properly denied that part of Flower City's motion seeking summary judgment dismissing the third-party complaint insofar as it alleges that plaintiff sustained a grave injury based on an acquired injury to the brain resulting in permanent total disability (see Workers' Compensation Law § 11). Flower City failed to meet its initial burden on the motion with respect to that part of the third-party complaint ( cf. Sergeant v. Murphy Family Trust, 292 A.D.2d 761, 762).
We further conclude, however, that the court erred in denying that part of Flower City's motion seeking summary judgment dismissing the third-party complaint insofar as it alleges that plaintiff sustained a grave injury based on permanent and severe facial disfigurement, and thus we modify the order accordingly. Photographs of plaintiff show that her scar is only slightly lighter than her skin tone and follows her hair line. Thus, Flower City established as a matter of law that plaintiff's facial scarring does not constitute a grave injury within the meaning of Workers' Compensation Law § 11, and third-party plaintiffs failed to raise an issue of fact to defeat that part of the motion ( see Sergeant, 292 A.D.2d at 761-762).