Argued September 9, 2002.
October 1, 2002.
In an action to recover damages for personal injuries, etc., the third-party defendant appeals from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated June 25, 2001, as denied that branch of its motion which was for summary judgment dismissing the third-party complaint on the ground that the injured plaintiff did not sustain a "grave injury" within the meaning of Workers' Compensation Law § 11.
Gallagher, Walker, Bianco Plastaras, Mineola, N.Y. (Stephen P. Burke and Domick Bianco of counsel), for appellant.
Morenus, Cardoza Conway, Westbury, N.Y. (Thomas M. Cardoza and Eileen M. Baumgartner of counsel), for defendants third-party plaintiffs-respondents.
Klein Vizzi, LLP, West Babylon, N.Y. (John J. Vizzi of counsel), for plaintiffs.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The third-party defendant met its burden of proving, by competent admissible evidence (see Gaddy v. Eyler, 79 N.Y.2d 955; Fitzpatrick v. Chase Manhattan Bank, 285 A.D.2d 487), that the injured plaintiff did not sustain a "grave injury" within the meaning of Workers' Compensation Law § 11 (see Dunn v. Smithtown Bancorp, 286 A.D.2d 701; Fitzpatrick v. Chase Manhattan Bank, supra; Curran v. Auto Lab Serv. Ctr., 280 A.D.2d 636). In opposition to the motion, the existence of a triable issue of fact was demonstrated. Accordingly, the Supreme Court properly denied that branch of the third-party defendant's motion which was for summary judgment dismissing the third-party complaint based on this issue.
RITTER, J.P., KRAUSMAN, McGINITY and LUCIANO, JJ., concur.