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United States District Court, E.D. New York

September 7, 2004.

HALKIN TOOL, LTD., Defendant. HALKIN TOOL, LTD., Third-Party Plaintiff, v. ELIOU STEEL FABRICATION, INC., Third-Party Defendant.

The opinion of the court was delivered by: DAVID TRAGER, District Judge


Plaintiff Arben Mustafa ("Mustafa" or "plaintiff") sustained crush injuries to both his hands and wrists while operating a press brake for his employer, Eliou Steel Fabrication, Inc. ("Eliou"). Mustafa sued the manufacturer of the press brake, Halkin Tool, Ltd. ("Halkin"), and Halkin now impleads Eliou for indemnification. At the close of discovery in the third-party action, Eliou filed a motion for summary judgment. Eliou contends that Mustafa's injury is not included within § 11 of the New York Workers' Compensation Law, which limits indemnification of a third-party defendant-employer to cases of statutorily-defined "grave injury." The motion for summary judgment is denied for the reasons set forth below.



  The Injury

  On June 3, 1998, Mustafa severely injured his hands in the course of operating a press brake machine for Eliou. It was his third day of work at the company's Brooklyn factory. Mustafa was helping another employee feed metal sheets into the press brake when a piece of metal stuck to the "ram," the mechanism which drops down to bend the sheets. (McCartney Aff., Ex. A2 at 207.) Mustafa detached the metal, but the piece fell away behind the machine. (Id. at 207-208.) He instinctively reached for it, at which time the ram activated, crushing his hands. (Id. at 208.)

  Mustafa was rushed to Bellevue Hospital and immediately underwent an operation. He sustained crush injuries to both hands and wrists, with damage to vital soft tissue structures as well as the skeletons of each hand (Platek Aff., Ex. H at 1.) He had four subsequent surgeries on his hands, wrists and forearms between 1998 and 2000. (Id. at 2.) His left wrist was surgically fused, a procedure that permanently immobilizes the wrist, usually in a neutral position so that the hand itself might still be useful. (Platek Aff., Ex. H at 2, Ex. I at 30-31.) However, Mustafa's left hand is severely damaged and although Mustafa completed a hand therapy program, he reported no resulting improvement. (McCartney Aff., Ex. A3 at 45-46.) Mustafa's right hand is not at issue in this motion; he admits that he uses his right hand to wash, shave and feed himself. (Platek Aff., Ex. G at 3.)

  Mustafa immigrated to the United States from Albania in 1996, at the age of 40, with his wife, parents and two children. (Szpilzinger Aff., Ex. B at 3.) He had completed 12 years of schooling in Albania, and then worked as a manager and machinist from 1986 through 1992 before coming to the United States to do similar work. Id. Since the accident, Mustafa has not returned to work. He enrolled in two computer classes in that time, but dropped out of both because he was unable to use his hands to type on a keyboard. (McCartney Aff., Ex. A3 at 29.) Mustafa could not sue Eliou because he was receiving workers' compensation benefits, but he brought suit against Halkin on June 28, 2000 in the Supreme Court of King's County. (Platek Aff., Ex. A.) The complaint listed negligence, strict liability and breach of warranty as the causes of action. Id. The case was removed to federal court on diversity grounds: Mustafa is a New York resident and Halkin is a Canadian corporation. Id. On October 18, 2000, Halkin impleaded Eliou, a New York corporation, as a third-party defendant under Fed.R. Civ. P. 14. Halkin seeks indemnification, claiming that Eliou did not properly train Mustafa or provide adequate safeguards for, and maintenance of, the press brake. (Platek Aff., Ex. C at 4.) Halkin alleges that if Mustafa sustained the "severe, grave injuries and damages complained of in his Complaint . . . such injuries and damages were caused by the active, affirmative and primary negligence, carelessness, recklessness and fault" of Eliou. (Id. at 3.)

  Eliou denies all allegations of liability and asserts, among other things, that because it had a workers' compensation policy in place at the time of Mustafa's accident, it is entitled to all the "defenses and set-offs" provided for by the N.Y. Workers' Compensation Law, including immunity from liability if Mustafa's injury is not statutorily grave. (Platek Aff., Ex. D at 5.) Eliou now moves for summary judgment on the third-party complaint. Both Halkin and Mustafa have filed briefs in opposition to the motion. Mustafa also filed a cross-motion to dismiss Halkin's affirmative defenses in the original action if summary judgment is granted because those defenses are based on Eliou's comparative fault; by an order of this court dated September 12, 2003, the cross-motion was denied on procedural grounds with leave to refile after the proper procedure is followed.


  Medical Opinions

  A. Dr. Joel Grad

  In January 2002, Dr. Grad, an orthopedic surgeon and one of plaintiff's expert witnesses in the original action, reviewed Mustafa's medical records and conducted a series of tests to evaluate his physical capabilities. These included tests for grip strength, range of motion in the fingers and pinch, which is the ability to lift weight using the thumb and index finger and the subsequent effect on the middle finger. (Platek Aff., Ex. I at 42.) At his deposition in February 2003, Dr. Grad testified that he had previously worked with patients who had lost total grip strength in their hands or total ability to form a pinch; however, in Mustafa's case, both hands registered on these tests. Id. Where an average male's grip strength is approximately 100 pounds, Dr. Grad found that Mustafa's right hand registered at 22, 20 and 17 pounds in three serial determinations, and the left hand registered at 7, 7 and 10 pounds. (Platek Aff., Ex. H at 2.) In three tests of Mustafa's pinch strength, the results were 7, 5 and 6 pounds on the right; 3, 3 and 2 pounds on the left. (Id. at 2-3.) Dr. Grad found that Mustafa could fully extend the fingers of his left hand to a neutral position, with the exception of the ring finger. (Id. at 2.) Dr. Grad wrote in his January 2002 report that Mustafa "has reached the maximal benefit of surgical efforts."*fn1 (Id. at 3.)

  Dr. Grad testified that Mustafa could engage in sedentary activities or jobs that would require use of both his hands, such as checking hats, answering a telephone or handing paper. (Platek Aff., Ex. I at 54-56.) He opined that, barring intolerable pain, Mustafa could lift a maximum of ten pounds with his left hand (Id. at 57.) When pressed by the Eliou lawyer, Dr. Grad stated that Mustafa could possibly lift that weight between two and five times an hour. Id. In addition, Dr. Grad agreed that Mustafa could wash parts of himself with his left hand, hold a hairbrush with a large, accommodated handle and, possibly, brush his teeth. (Id. at 53-54.)

  B. Karen DeChello

  DeChello, an occupational therapist with a background in upper extremity injuries and another expert witness for Mustafa in the original action, conducted a three-hour "occupational examination" of Mustafa in October 2002. This exam assessed Mustafa's "physical status, functional status, cognitive abilities, and . . . vocational aptitudes and abilities." (Szpilzinger Aff., Ex. B at 1.) DeChello, like Dr. Grad, conducted tests for grip strength and pinch. In a test of Mustafa's grip strength, she found that his right hand registered at 15, 12 and 11 pounds in three serial determinations, and his left hand registered consistently at 10 pounds. (Id. at 7; McCartney Aff., Ex. D at 66.) Despite these results, DeChello noted in her report that Mustafa was "unable to use his left hand on any carrying task." (Szpilzinger Aff., Ex. B at 7.) He was also "unable to use his left hand functionally," either alone or to assist his right hand Id.

  In addition, DeChello conducted a test "designed to measure fine finger dexterity and manipulation, as well as gross movement of the arms." (Id. at 6.) This test consisted of picking up and assembling small pegs, collars and washers. (McCartney Aff., Ex. D at 70.) Mustafa scored below average for the right hand on this test. DeChello wrote of the left hand: "He was unable to perform the left hand placing, bilateral placing, and assembly subtests due to inability to use his left hand functionally." (Szpilzinger Aff., Ex. B at 6.)

  In testing pinch ability, DeChello had Mustafa attempt three different pinch positions. Although Mustafa could make all three pinch positions on his right hand, he could assume only one pinch with his left hand, measuring 1.5 pounds. (McCartney Aff., Ex. D at 67-68.) This result prompted DeChello to write, "Unable to use pinch prehension patterns with (L) hand" (Szpilzinger, Ex. B at 9.) DeChello's report concluded with a discussion of Mustafa's employment opportunities in which she cautioned, "It also needs to be considered that Mustafa is unable to use his left hand functionally for any type of grasp, prehension, dexterity or bimanual tasks." (Id. at 10.)

  DeChello's deposition, taken in March 2003, was largely consistent with her report. She emphasized that "[Mustafa] really couldn't lift anything with his left hand He couldn't get enough flexion to grasp and maintain the hold" on the handle of a nine-pound box similar to a tool chest. (McCartney Aff., Ex. D at 87-88.) Nor could Mustafa pick up a piece of paper with his left hand (Id. at 98.) However, when questioned by Eliou's lawyer, DeChello speculated that Mustafa could possibly hold a large washcloth with his left hand, or a fork with an enlarged handle, although she was unconvinced that he could use these objects even if he could hold them. (Id. at 89-93.)

  C. Other medical experts

  Dr. Martin Posner, an orthopedic surgeon who examined Mustafa on behalf of Eliou, concluded that the fused wrist was in a good functional position and that the left hand's mobility could be improved by additional corrective surgery. (Szpilzinger Aff., Ex. C.) Even without additional surgery, however, "the current function of [the left] hand is such that he is capable of carrying out light work activities." Id.

  Dr. Alamgir Isani, who examined Mustafa for insurance purposes, concluded that Mustafa sustained a "moderate degree of disability as regards his injured left hand" (Szpilzinger Aff., Ex. F at 3.) In an assessment of Mustafa's functional capacity, he stated: "The left hand, however, is going to have markedly limited functional capacity due to the arthrodesis of the wrist and the significantly deficient grasp pattern." (Id. at 4.)




Section 11 of the N.Y. Workers' Compensation Law ("§ 11") provides, in relevant part:
An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a `grave injury' which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.
N.Y. Workers' Compensation Law § 11 (McKinney Supp. 2004) (emphasis added).

  This provision, which was added to the law in a 1996 amendment, was intended to limit the effect of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), a seminal case that significantly expanded an employer's contribution liability by allowing apportionment of responsibility between a defendant and a third party. In Dole, the plaintiff sued Dow, a chemical manufacturer, after her husband died from exposure to a fumigant used by his employer. Dole, 30 N.Y.2d at 145, 282 N.E.2d at 290, 331 N.Y.S.2d at 384. Dow impleaded the employer, alleging that the employer was primarily negligent. Id. at 146, 282 N.E.2d at 290, 331 N.Y.S.2d at 385. Prior to Dole, a defendant's options for recovery from an employer whose negligence had contributed to an injury was limited to either full indemnification or equal contribution. In Dole, the New York Court of Appeals held that:

Where a third party is found to have been responsible for a part, but not all, of the negligence for which a defendant is cast in damages, the responsibility for that part is recoverable by the prime defendant against the third party. To reach that end there must necessarily be an apportionment of responsibility in negligence between those parties.
Id. at 148-149, 282 N.E.2d at 292, 331 N.Y.S.2d at 387.

  The New York legislature intended the 1996 amendment to give "relief in the form of immunization from tort liability to employers . . . who provide workers' compensation coverage," except in "extremely limited, defined circumstances." Castro v. United Container Mach. Group, 96 N.Y.2d 398, 402, 761 N.E.2d 1014, 1016, 736 N.Y.S.2d 287, 289 (2001). Under the amended statute, an employer who provides workers' compensation could also be held liable for contribution or indemnity as a third-party defendant only where "third-party plaintiff proves through competent medical evidence that the employee sustained a grave injury." McCoy v. Queens Hydraulic Co., Inc., 286 A.D.2d 425, 729 N.Y.S.2d 733, 734 (2d Dep't 2001). The Governor's Memorandum approving the amendment stated: "The grave injuries listed are deliberately both narrowly and completely described. The list is exhaustive, not illustrative; it is not intended to be extended absent further legislative action." (Governor's Approval Memorandum, ch. 635, L 1996, reprinted in 1996 N.Y. St. Legis. Ann. 174, at 460.) The "term `grave injury' has been defined as a `statutorily-defined threshold for catastrophic injuries,' and includes only those injuries which are listed in the statute and determined to be permanent." Ibarra v. Equipment Control, 268 A.D.2d 13, 17, 707 N.Y.S.2d 208, 211 (2d Dep't 2000) (citing Kerr v. Black Clawson Co., 241 A.D.2d 686, 663 N.Y.S.2d 1010, 1011 (3d Dep't 1997)).

  In Castro, the New York Court of Appeals strictly interpreted the "grave injury" list and held that a plaintiff-employee who had lost five fingertips in a machinery accident did not fall within § 11. Castro, 96 N.Y.2d at 401, 761 N.E.2d at 1015, 736 N.Y.S.2d at 288. The Court held that the § 11 phrase "loss of multiple fingers" could only refer to the loss of one or more entire fingers; it could not be stretched to include the partial loss of multiple fingers. Id. In light of this strict interpretation, the issue here is whether Mustafa's left-hand injury has resulted in the "permanent and total loss of use" of his hand, as required for a finding of "grave injury." The left-hand injury could not fall within any other narrowly defined § 11 category. While Mustafa's injury was initially described as a "partial amputation" in the hospital records (Platek Aff., Ex. F), Eliou contends, without opposition, that the phrase was a misnomer. (See Platek Aff., Ex. I at 22-23; Szpilzinger Aff., Ex. D at 32.) Furthermore, even if Mustafa suffered a "partial amputation," a strict interpretation would suggest that "partial amputation" is not equivalent to the "amputation" category listed in the statute.

  New York case law interpreting § 11 has revealed some ambiguity as to what constitutes "permanent and total loss of use" of the hand Although the courts generally follow Castro's strict interpretation and narrowly construe § 11 within the plain meaning of its language, see Majewski v. Broadalbin-Perth Century School District, 91 N.Y.2d 577, 583, 696 N.E.2d 978, 980, 673 N.Y.S.2d 966, 968 (1998), they have not fully considered the multiple plain meanings of the phrase "total loss of use." The phrase can be interpreted as the loss of functional use — the inability to accomplish a task with the hand However, it can also be interpreted as the loss of all movement in the hand The importance of this distinction is illustrated in the present case. Every medical expert who examined Mustafa concluded that he has some ability to move his left hand; therefore, he has not suffered "total loss of use" under the latter definition. But there is conflicting expert testimony about Mustafa's ability to function with his left hand; therefore, if the former definition applies, summary judgment may not be appropriate.

  The New York Court of Appeals has yet to clarify the definition of "total loss of use." The most relevant Court of Appeals decision involved a similar third-party action between a manufacturer and an employer in Meis v. ELO Organization LLC., 97 N.Y.2d 714, 767 N.E.2d 146, 740 N.Y.S.2d 689 (2002). In that case, the New York Court of Appeals held that the plaintiff-employee's loss of a thumb in a construction accident did not leave him with a "permanent and total loss of use" of that hand The Meis court stated that "[section 11] does not list the loss of a thumb as a `grave injury,' and plaintiff failed to demonstrate that due to the amputation of his thumb he suffers a `permanent and total loss of use' of the hand" Meis, 97 N.Y.2d at 716, 767 N.E.2d 146, 740 N.Y.S.2d 689. See also McCoy, 286 A.D.2d 425, 729 N.Y.S.2d 733 (holding that amputation of upper-third of an index finger is not a "grave injury").

  The New York Court of Appeals did not have to analyze "total loss of use" in Meis because the employee's injury was clearly not the type of "grave injury" defined by § 11. Meis, however, can be readily distinguished from the case at hand Where the Meis employee retained both function and movement in his hand, Mustafa's crush injury and surgically fused wrist have severely impacted his entire left hand Furthermore, the Meis employee offered only a bill of particulars to support his claim while Halkin provides the report and testimony of Karen DeChello, a licensed occupational therapist, to dispute Eliou's summary judgment evidence.

  Although there are several relevant Appellate Division opinions, there is no clear consensus among the appellate courts on the interpretation of "total loss of use." The only § 11 case that seems to clearly define the phrase as the loss of movement, does so in reference to an arm, not a hand See Aguirre v. Castle American Construction, 307 A.D.2d 901, 762 N.Y.S.2d 913 (2d Dep't 2003). The Aguirre court found that third-party plaintiff "defeat[ed] its claim that the plaintiff sustained a permanent and total loss of use" by admitting that there was "some movement" in the employee's injured arm. Id. at 901, 762 N.Y.S.2d at 913. While Aguirre might be relevant to the issue at hand, there are significant differences between an injured arm and an injured hand The hand is a more complex instrument. It has over two dozen bones, as opposed to the three bones of an arm. Most of the hand's functions require being able to grasp and oppose, not just minimally move the fingers. More importantly, none of the appellate cases dealing specifically with hand injuries clearly equate the ability to move a hand with the ability to use it for § 11 purposes, as Aguirre does.

  If anything, the relevant appellate cases seem to lean toward the functional use interpretation. For example, in Trimble v. Hawker the Appellate Division focused on the employee's ability to "grasp, hold and carry" objects with his injured hand Trimble v. Hawker Dayton Corporation, 307 A.D.2d 452, 453, 761 N.Y.S.2d 409, 410 (3d Dep't 2003). The Trimble employee, like Mustafa, sustained crush injuries in a machinery accident. However, he was still able to "extend and close his right thumb and fingers sufficiently to grasp, hold and carry objects in his right hand," according to medical evidence submitted by the third-party defendant-employer in its motion for summary judgment. Id. The third-party plaintiff-manufacturer tried to dispute this evidence with a short, conclusory affirmation from another physician. The affirmation did not adequately dispute the medical findings, however, and the court granted summary judgment. Id. By focusing on the employee's ability to "grasp, hold and carry," the Trimble court seemed to interpret "total loss of use" as the loss of functional use. If that standard were to be applied to the present case, Mustafa's injury, according to DeChello's expert opinion, could well be adjudged to involve a "total loss of use." (See Szpilzinger Aff., Ex. B at 6.) Like the Meis court, the Trimble court never needed to explore the distinction between the loss of function and the loss of movement because summary judgment was clearly warranted on other grounds.*fn2 The physician's affirmation in Trimble was not the competent medical evidence required by § 11. It was considered conclusory because it was not supplemented by objective medical data. Trimble, 307 A.D.2d at 453, 761 N.Y.S.2d at 410. DeChello's report and testimony cannot be similarly labeled. Her opinion was formed after reviewing Mustafa's accident-related medical records and conducting a three-hour examination. In addition, the physician in Trimble did not specifically dispute the moving party's evidence, Trimble, 307 A.D.2d at 453, 761 N.Y.S.2d at 410. By contrast, DeChello's report clearly states that Mustafa is "unable to use his left hand functionally," in direct conflict with Dr. Grad's assertion. (Szpilzinger Aff., Ex. B at 7.)

  The closest an appellate court has come to discussing the subtleties of the word "use" has been in the context of passive and active uses of an injured hand In Sexton v. Cincinnati Inc., 2 A.D.3d 1408, 769 N.Y.S.2d 773 (4th Dep't 2003), the Appellate Division decided that passive use of an injured hand did not negate a claim of "permanent and total loss of use." In Sexton, the third-party defendant-employer put forth evidence showing that the injured employee was able to "perform certain limited activities with his hands." Sexton, 2 A.D.3d at 1410, 769 N.Y.S.2d at 774. However, the third-party plaintiff-manufacturer responded with the affidavit of a medical expert stating that "plaintiff actually performs those activities with his arms, using the adaptive techniques of an amputee." The expert asserted that "plaintiff has not retained even minimal use of his hands."*fn3 Id. The Sexton court accepted this idea of passive use — being able to use a hand, but only through the manipulation of an arm — as sufficient to defeat the summary judgment motion. See also Balaskonis v. HRH Construction Corp., 1 A.D.3d 120, 767 N.Y.S.2d 9 (1st Dep't 2003) (summary judgment denied in light of evidence that employee had retained only passive use of his hand and arm).

  In the case at hand, Eliou contends that Mustafa's use of his left hand as an unreliable "holder" of cigarettes demonstrates that he has not suffered a "total loss of use." (McCartney Aff., Ex. A3 at 68, 71.) Mustafa can position a cigarette between his thumb and index finger, although it occasionally falls out without him noticing. Id. He can also rest a cigarette carton on top of his left hand, using it like a shelf. (Id. at 71.) These can both be considered passive uses. Even a plaintiff who unequivocally fits the language of § 11, perhaps suffering from complete paralysis of the hand, might still be able to use that hand as a shelf, a dead weight or an impromptu hook. In light of Sexton, Mustafa's undisputed passive uses do not appear to be enough to keep his injury from being considered a "total loss of use."

  As noted, the New York courts have not definitively defined "permanent and total loss of use" of the hand Therefore, Sexton provides the most analogous precedent. If passive use did not preclude the injury in Sexton from being considered a "permanent and total loss of use," it seems to follow that an ineffective amount of movement would similarly not preclude an injury from fitting within the statute. This court adopts the logic of the Appellate Division in Sexton and finds that a capacity for mere movement falling short of functional use does not negate a claim of "permanent and total loss of use." Reading the phrase as the loss of functional use is consistent with a narrow, plain-meaning interpretation of § 11. If the New York legislature's intention was to limit "grave injury" claims to instances in which a plaintiff had lost all movement in the hand, the phrase would have been written as "total loss of movement." Instead, the legislative intent was to limit employer liability to cases of catastrophic injury. Mustafa's injury would undoubtedly qualify as such if DeChello's conclusions are to be believed.


  Since Mustafa's left-hand injury could fall within § 11, the question that now must be addressed is whether Halkin has presented sufficient evidence to dispute Eliou's contention that Mustafa has not suffered a "permanent and total loss of use" of his left hand Section 11 requires the party claiming "grave injury" to prove it through "competent medical evidence" which must be "based upon objective medical findings and diagnostic tests." Eisen v. Walter & Samuels, 215 A.D.2d 149, 150, 626 N.Y.S.2d 109 (1st Dep't 1995); Trotter v. Hart, 285 A.D.2d 772, 773, 728 N.Y.S.2d 561, 562 (3d Dep't 2001); John v. Engel, 2 A.D.3d 1027, 1028, 768 N.Y.S.2d 527, 529 (3d Dep't 2003). However, "once a medical expert has established his or her knowledge of the relevant standards of care, he need not be a specialist in the particular area at issue to offer an opinion. Any lack of skill or expertise goes to the weight of his or her opinion as evidence, not its admissibility." Erbstein v. Savasatit, 274 A.D.2d 445, 711 N.Y.S.2d 458, 460 (2d Dep't 2000).

  In the only New York state case on point, conflicting affidavits from two treating physicians "presented a factual dispute regarding the extent of plaintiff's injury . . . [T]hat court properly recognized that it could not resolve this material factual question in the context of a summary judgment motion." Cassagnol v. Williamsburg, 234 A.D.2d 208, 210, 651 N.Y.S.2d 518, 519 (1st Dep't 1996); Scanner v. Icos, 253 F. Supp. 2d 624, 634 (S.D.N.Y. 2003) ("The credibility of competing expert witnesses is a matter for the jury, and not a matter to be decided on summary judgment"). The Second Circuit has adopted the similar view that "when, as here, there are conflicting expert reports presented, courts are wary of granting summary judgment." Harris v. Provident, 310 F.3d 73, 79 (2d Cir. 2002) (quoting Hudson Riverkeeper Fund v. Atlantic Richfield Co., 138 F. Supp. 2d 482, 488 (S.D.N.Y. 2001)).

  In this summary judgment motion, Eliou offers the medical opinion of Dr. Grad, an orthopedic surgeon. He conducted a physical examination of Mustafa, including tests of his grip strength, pinch and range of motion. Dr. Grad reported that Mustafa's grip strength in the left hand registered at an average of eight pounds (Platek Aff., Ex. I at 37), and that he could pinch approximately three pounds between his left thumb and index fingers (Platek Aff., Ex. H at 2). One year after the examination, Dr. Grad was deposed. He testified that Mustafa had some use of his left hand despite severe impairment.*fn4 (Platek Aff., Ex. I at 69.) He opined that Mustafa could use his left hand for light daily tasks, such as using a washcloth and brushing his teeth. (Id. at 54-56.) Dr. Grad also said that he believed, based solely on Mustafa's physical capabilities, that Mustafa could perform vocational tasks with both hands, such as checking coats, answering the phone or handing paper. (Id. at 56.) These conclusions, however, were not in Dr. Grad's initial report. Furthermore, Dr. Grad admitted that he did not recall examining Mustafa and that his testimony was based on a review of his report, the accident-related medical records and Mustafa's deposition.*fn5 (Platek Aff., Ex. I at 14, 19.)

  To dispute Dr. Grad's conclusion, Halkin offers the report and deposition of DeChello, an occupational therapist with a specialty in upper extremity injuries. She performed tests on Mustafa over the course of a three-hour examination, including those in which she asked Mustafa to grasp, lift and place different objects. (Szpilzinger Aff., Ex. B at 6-7.) DeChello found that Mustafa could form only one pinch position out of three with his left hand, at a strength of 1.5 pounds. (McCartney Aff., Ex. D at 67-68.) She also determined that his left hand grip strength was ten pounds, less than ten percent of the normal strength of an average male. (Id. at 66.) DeChello's report consistently concluded that, despite minimal grip and pinch capabilities, Mustafa had no functional use of his left hand (Szpilzinger Aff., Ex. B at 7.) She wrote, "Mr. Mustafa is unable to use his left hand functionally for any type of grasp, prehension, dexterity, or bimanual tasks." (Id. at 10.)

  Eliou contends, however, that DeChello's conclusions are irrelevant to the question of whether Mustafa sustained "total loss of use" because she was evaluating more than just his physical capacity when conducting her "occupational examination." However, the tests DeChello conducted on Mustafa, albeit part of a larger assessment, included ones identical to those conducted by Dr. Grad. Furthermore, DeChello's conclusions about Mustafa's physical condition are easily distinguished from those she made concerning his emotional or psychological status and his capacity to work again.

  Eliou also asserts that DeChello's answers to hypothetical questions about Mustafa's "daily living skills," posed to her at her deposition, undermine the conclusions in her report. (McCartney Aff., Ex. D at 89.) In a summary judgment motion, however, all ambiguous evidence must be viewed in the light most favorable to the non-moving party. See Lucente v. IBM Corp., 310 F.3d 243, 253 (2d Cir. 2003). With that in mind, it becomes relevant to look at the deposition as a whole. DeChello hesitated on, and did not seem convinced by, her own answers to this line of questioning. (McCartney Aff., Ex. D at 89-98.) She repeatedly stated that she did not test for the specific skills in question and, therefore, did not want to speculate on them. Id. When pressed, however, she conceded that Mustafa might be able to grip a large hairbrush made with accommodations, all the while maintaining that even so, his fused wrist would make using the hairbrush difficult. (Id. at 90.) She made the same qualified concessions when asked if Mustafa might be able to hold a large washcloth in his left hand, or a fork with an enlarged handle: he might be able to hold them, but he would have difficulty using these objects for washing or eating. (Id. at 93.) When viewed in context, DeChello's statements are not enough to invalidate her ultimate conclusion that Mustafa cannot use his left hand

  Case law suggests that if there is a plausible case to be made for "grave injury," it becomes a question of fact for the jury to decide. Conversely, a claim of "grave injury" must be dismissed as a matter of law if the alleged injury does not fall within the narrow parameters of § 11, or if it is not supported by competent medical evidence. See Londono v. Hobart, No. 98-CV-908, 1999 U.S. Dist. LEXIS 4671, *3 (S.D.N.Y. Apr. 2, 1999) (summary judgment denied on the grounds that totality of plaintiff's injuries, if proven at trial, could amount to a "grave injury"); Gavette v. Warner & Swasey, No. 90-CV-217, 1999 U.S. Dist. LEXIS 2541, at *34 (N.D.N.Y. Mar. 5, 1999) (sufficient evidence on both sides created an issue of fact to send to a jury); Meis, 97 N.Y.2d 714, 767 N.E.2d 146, 740 N.Y.S.2d 689 (for lack of plausible claim, N.Y. Court of Appeals reversed decision to send "grave injury" question to the jury); see also David D. Siegel, Proving `Grave Injury' in Tort Case so as to Sustain Impleader of Employer: Whose Burden, Plaintiff's or Defendant's? Whose Decision, Court's or Jury's?, 92 Siegel's Practice Review 1 (February 2000) (the court should leave the question of "grave injury" to a jury unless it can determine that there is none as a matter of law). In this case, where there are conflicting expert opinions as to whether Mustafa suffered "permanent and total loss of use" of his left hand, "grave injury" becomes a question of fact for the jury to decide.


  Adopting a functional use interpretation of the phrase "permanent and total loss of use," as suggested by the state courts, there is sufficient evidence to support Halkin's claim of "grave injury" under § 11. Although DeChello and Dr. Grad conducted similar medical tests, and achieved similar results, Dr. Grad concluded from the data that Mustafa could both move and function with his left hand DeChello, on the other hand, determined that the slight movement in Mustafa's hand did not add up to functional use. Their conflicting opinions, each based on competent medical evidence, raise a question of fact as to whether or not Mustafa's injury has left him with a "permanent and total loss of use," as defined by § 11 of the N.Y. Workers' Compensation Law. Accordingly, Eliou's motion for summary judgment is denied.


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