Jerome v Ji Young You

[*1] Jerome v Ji Young You 2009 NY Slip Op 51678(U) [24 Misc 3d 1230(A)] Decided on August 4, 2009 Civil Court Of The City Of New York, Queens County Buggs, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 4, 2009
Civil Court of the City of New York, Queens County

Isbern Jerome and Justin Prepetit, Plaintiffs,

against

Ji Young You, Defendant,



300328-QTS-2009



For plaintiff: Gencian Gjoni, Esq. (Armienti, DeBellis, Guglielmo & Rhoden)

For defendant: Marcella Gerbasi Crewe, Esq. (Richard T. Lau & Associates)

Chereé A. Buggs, J.

Plaintiff ISBERN JEROME ("plaintiff") filed a motion for summary judgment under Civil Practice Law and Rules (CPLR) §3212 to dismiss the counterclaim of defendant JI YOUNG YOU ("defendant"). Defendant served an answer containing a counterclaim against plaintiff, claiming that if co-plaintiff JUSTIN PREPETIT ("co-plaintiff") sustained injuries, those injuries were caused "in whole or material part" by plaintiff. Plaintiff contends that since he and co-plaintiff were co-employees acting within the scope of their employment when the [*2]accident causing the alleged injuries occurred, defendant's counterclaim is essentially a claim for contribution against co-plaintiff's employer, and should be dismissed because there was no "grave injury" as required by New York State Workers' Compensation Law ("WCL") §11.

Background

Plaintiff and co-plaintiff alleged in the verified complaint that on July 23, 2002, they were both in an ambulance being driven by plaintiff when they became involved in a motor vehicle accident with defendant on Francis Lewis Boulevard and 26th Avenue in the County of Queens. They further alleged that they suffered injuries requiring medical attention, and that such injuries were caused "wholly and solely" by defendant's negligence. In his answer, defendant included a counterclaim against plaintiff, alleging that if co-plaintiff sustained any injuries or damages, that they were caused in whole or part by plaintiff's "fault, negligence, recklessness or failure of due care." Defendant further asserted that if he was held liable for any damages to the co-plaintiff, there should be a separate determination "...as to the proportion of [plaintiff's] relative responsibility and culpable conduct..." and that "...said plaintiffs should be held liable over to the answering defendant for the full amount of any verdict or judgment that the plaintiffs may recover against the answering defendant or for any part thereof, according to the proportionate share of the plaintiff Isbern Jerome."

Discussion

The proponent of a summary judgment motion must make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). In the matter herein, plaintiff has demonstrated his prima facie entitlement to summary judgment. He submitted the affidavit of the Vice President in Charge of Operations for Hunter Ambulette to establish that plaintiff and co-plaintiff were both employed by that company and working within the scope of their employment when the accident occurred. Plaintiff further submitted the March 1, 2007 sworn examination before trial ("EBT") testimony of co-plaintiff, who testified that he was employed as an emergency medical technician with Hunter Ambulette on the date the accident, and that the accident happened when he and plaintiff were on the way to pick up a patient. Plaintiff further contends that defendant's counterclaim alleging that plaintiff was liable in whole or in part for co-plaintiff's injuries, and seeking a separate determination of plaintiff's proportional responsibility and culpability in the event defendant is found liable is prohibited by the WCL and by related case law.

The doctrine of contribution, addressed in CPLR Article 14, allows a tortfeasor found culpable for an injury to seek equitable apportionment of damages from other tortfeasors. However, the statute makes a clear exception for cases involving workers' compensation. Section 1401 provides:

"Except as provided in sections 15-108 and 18-201 of the general obligations law, sections eleven and twenty-nine of the workers' compensation law [emphasis added], or the [*3]workers' compensation law of any other state or the federal government, two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought."

The referenced exception to the contribution doctrine contained in WCL §11 provides in

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'..."

Further, under WCL §29(6), the section of law most relevant to the matter herein, co-employees are immune from lawsuits for injuries arising out of and related to their employment. That section states in part: "The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his or her dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ..."

Common law precedent is unequivocal on the issue of actions against co-employees for injury or death occurring in the scope of employment. Section 29(6) "...makes one and only one remedy available to an employee injured in the course of his employment by a fellow worker, namely [workers'] compensation. Consequently, no common-law action is permitted whether such action be directed against a negligent co-employee or his principal..." (Roberts v. Gagnon, 1 AD2d 297, 149 NYS2d 743 [3rd Dept 1956]; see also Rozelle v. Robertson, 29 AD2d 589, 285 NYS2d 449 [3rd Dept 1967]; Kawecki v. McAllister, 221 AD2d 597, 635 NYS2d 36 [2nd Dept 1995]). Additionally, "...in depriving an employee of other recourse, the Legislature could scarcely have used stronger language than exclusive remedy'..." (Rauch v. Jones, 4 AD2d 572, 168 NYS2d 69 [1957], affd 4NY2d 592, 176 NYS2d 628 [1958]).Relatively recent case law has addressed the issue of third-party actions, making clear that the WCL bars such actions against co-employees for workplace injuries sustained by employees. In Hynes v. Start Elevator (2 AD3d 178, 769 NYS2d 504 [1st Dept 2003]), the Appellate Division held that in an action arising out of a former employee's injuries sustained while operating an elevator, the defendant/third-party plaintiff elevator company's indemnification and contribution causes of action against a building managing agent (who was deemed to be the injured employee's co-employee for "purposes of the workers' compensation exclusive remedy bar") were barred by the WCL "exclusive remedy" provision.

Although in his motion for summary judgment, plaintiff incorrectly relies largely on an argument that defendant's counterclaim is prohibited by WCL §11, which bars contribution causes of action against an employer in cases involving workplace injuries, and requires proof of "grave injury," the premise of his summary judgment motion, that the WCL disallows [*4]defendant's counterclaim for contribution against aco-employee for "scope of employment" injuries, is supported by statutory and case law as cited herein. Based upon plaintiff's supporting documents evidencing that he and co-plaintiff were fellow employees working within the scope of employment when the accident occurred, as well as upon the pertinent law, the Court finds that plaintiff has demonstrated his prima facie entitlement to summary judgment.

Where a movant has demonstrated its entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Zuckerman, 49 NY2d 557 at 562). Defendant's Affirmation in Opposition does not rebut any of plaintiff's arguments on either the facts or the law, but instead contends that plaintiff did not establish the existence of workers' compensation coverage at the time of the accident, and cites case law that the failure to secure workers' compensation coverage is an exception to the "exclusive remedy" provision. (See O'Rourke v. Long, 41 NY2d 219, 391 NYS2d 553 [1976]). Defendant references a portion of the co-plaintiff's EBT transcript in which he states that he had no recollection of filing a workers' compensation claim, of hiring an attorney to procure such claims, or of receiving money from a workers' compensation claim filed following the accident.

However, not only does the transcript of the co-employee's testimony reflecting lack of recall of matters regarding the filing of a workers' compensation claim or the receipt of benefits from such a claim fail to show the nonexistence of a workers' compensation policy in effect at the time of the accident, but the record does not reflect that defendant raised this issue at any time prior to his Affirmation in Opposition. Defendant does not allege the lack of workers' compensation coverage in either his answer or counterclaim; nor is there any record of defendant filing a motion for leave to amend his answer after the EBT to assert a lack of coverage. Consequently, the Court finds the argument that the plaintiff has not established the existence of workers' compensation coverage to be, at best, a fallacious one, as there was no prior basis or opportunity for plaintiff to address it. In fact, in O'Rourke v. Long (41 NY2d 219[1976], supra ), a case defendant cites, the plaintiffs contended that the defendant failed to produce adequate evidence that it secured workers' compensation insurance. The Court noted that the "...plaintiff did not allege this second and alternate theory for avoiding the application of workmen's compensation in his complaint..." and that "...[i]n any event, the full record....supports a conclusion that the defendant did in fact maintain a compensation insurance policy" (O'Rourke, 41 NY2d 219 at 224-225). Similarly, in the matter herein, the plaintiff annexes to his Reply Affirmation a copy of a Notice of Compliance with the WCL showing a policy with Empire State Transportation Workers' Compensation Trust effective from January 1, 2002 to January 1, 2003, covering the period of the July 2002 accident.

The Court finds that the defendant has failed to meet his burden of demonstrating a factual issue requiring a trial on the counterclaim, and further, has not offered an "acceptable excuse for his failure" to do so (see Zuckerman, 49 NY2d at 562). Accordingly, the plaintiff's motion for summary judgment seeking dismissal of defendant's counterclaim must be granted in its entirety.

The foregoing constitutes the Decision and Order of the Court. [*5]

Dated:August 4, 2009_________________________________

Hon. Chereé A. Buggs

Judge, Civil Court of the City of New YorkCounty of Queens