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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 ...

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