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A man sustained severe personal injuries during the course of his employment


A man sustained severe personal injuries during the course of his employment when he fell from a ladder in a warehouse owned by the accused warehouse corporation. He commenced an action alleging negligence and violations of Labor Law. The warehouse corporation brought a third-party action against the Dollar Store in Westchester which is the man’s employer to seek common-law and contractual indemnification. In two separate motions, the employer moved for summary judgment to dismiss the third-party complaint. Supreme Court denied both motions, finding issues of fact as to whether, under the Workers’ Compensation Law the man sustained a grave brain injuryand whether the employer had contractually agreed to indemnify the warehouse corporation.

Workers’ Compensation Law permits an owner to bring a third-party claim against an injured worker’s employer in only two circumstances: when the injured worker has suffered a grave brain injury or the employer has entered into a written contract to indemnify the owner. The employer asserts that the warehouse corporation failed to raise an issue of fact as to the applicability of either exception to the prohibition against third-party claims against the employers.

A grave injury is defined, in relevant part, as an acquired brain injury caused by an external physical force resulting in permanent total disability. Although the statute does not define permanent total disability, the Court of Appeals has determined that a brain injury results in permanent total disability under the Workers’ Compensation Law when the evidence establishes that the injured worker is no longer employable in any capacity. Even the employer sustained its initial burden of establishing as a matter of law that the man did not sustain a grave injury, the evidence submitted in opposition to the motion was sufficient to raise a triable question of fact.

The medical evidence reveals that, as a result of the fall, the man suffered a traumatic brain injury which included, among other things, a posterior temporal contusion and a left frontal epidural hematoma. The psychiatrist, who performed an independent medical examination to the man, reported that as a result of the brain injury that the man suffers from an inability to concentrate for long periods, significant loss of short-term memory, fatigue and psychomotor slowing, as well as depression symptoms directly resulting from the catastrophic injuries sustained in the accident. The physician that the man has been treating since the accident similarly averred that the man continues to suffer from cognitive difficulties, such as poor concentration and memory deficits, as a consequence of his brain injury. Both experts agreed that, given that the man’s cognitive deficits persist more than four years after the accident, the symptoms will not improve with time or rehabilitation and, therefore, are permanent in nature. They also unequivocally opined that the symptoms and residual effects caused by the brain injuries suffered as a result of the accident, particularly the man’s poor cognitive functioning, render him permanently and totally disabled and unable to maintain any type of gainful employment either on a full or part time basis. The evidence, coupled with the fact that the man has been awarded with Social Security disability benefits, is sufficient to raise a material question of fact.

When a tenant remains in possession upon the expiration of a lease, it is a holdover and, pursuant to common law, there is implied a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument. The Workers’ Compensation Law in NYC permits a third-party indemnification claim against the employer only when such claim is based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to indemnification of the claimant or person asserting the cause of action for the type of loss suffered. There is clearly no such written agreement between the employer and the warehouse corporation whereby the employer expressly agreed to indemnify the warehouse corporation. Rather, the only express agreement to indemnify is contained in a long expired lease between the warehouse corporation and the owner of the Dollar Store. Whether an assignment of the expired lease could be presumed as a consequence of its possession of the premises and payment of rent is simply irrelevant to our analysis under Workers’ Compensation Law.

Thus, inasmuch as there is no writing whereby the employer Dollar Store expressly agreed to indemnify the warehouse corporation, summary judgment dismissing the warehouse corporation’s contractual indemnification claim should have been awarded.

When people get hurt while performing their duty, the main concern should be to find all possible ways to help that person. Some employers and insurance companies on the other hand do the opposite. Instead of lending a hand, they find ways to excuse themselves from possible claims. If you are caught in this kind of situation, call the NY Injury Lawyers or the NY Brain Injury Attorneys. Stephen Bilkis and Associates can also provide you with the most reliable NY Personal Injury Attorneys and NY Wrongful Death Lawyers.

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