AGUIRRE v. CASTLE AMERICAN CONSTRUCTION

ORDERED that the order is affirmed, with costs.

The third-party defendant met its burden of proving, through its submission of the amended verified complaint, verified bills of particulars, and the affidavit of the plaintiff Jorge Aguirre (hereinafter the plaintiff) ( see Ibarra v. Equip. Control, 268 A.D.2d 13; Barbieri v. Mount Sinai Hosp., 264 A.D.2d 1), that the plaintiff's injuries, although serious, did not rise to the level of "grave" injuries within the meaning of Workers' Compensation Law § 11 (see Castro v. United Container Mach. Group, 96 N.Y.2d 398). The defendant third-party plaintiff's admissions in its reply papers and on appeal that the plaintiff has some movement in his arm defeat its claim that the plaintiff sustained a permanent and total loss of use of that arm as required under Workers' Compensation Law § 11 ( see Meis v. ELO Org., 97 N.Y.2d 714).

ALTMAN, J.P., GOLDSTEIN, McGINITY and MASTRO, JJ., concur.