High v Reuters Am., Inc.

[*1] High v Reuters Am., Inc. 2005 NY Slip Op 50476(U) Decided on March 9, 2005 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2005
Supreme Court, Bronx County

High, Veronica, Plaintiff,

against

Reuters America, Inc., et al., Defendant.



18866/2002

Nelson Roman, J.

Defendants, Reuters America, Inc., Reuters American Holdings, Inc. ( collectively referred to as "Reuters'), and David Schlesinger ("Schlesinger"), move to renew their prior application, which was denied without prejudice to renew, which sought to stay, pursuant to CPLR 2201, the instant plenary action pending final resolution of plaintiff's cause of action before the Worker's Compensation Board ("WCB"). (See, Decision and Order, dated August 11, 2004). Plaintiff opposes on the basis the claims asserted herein and those asserted before the WCB are distinct and as such she is entitled to prosecute the claims simultaneously. For the [*2]following reasons, defendant's motion to renew is granted and upon renewal, the motion seeking to stay the instant proceeding pending final resolution of plaintiff's complaint before WCB is granted in the interest of justice.

Preliminary Facts:

Herein, plaintiff alleges she was employed by Reuters as an Executive Assistant and was supervised by Schlesinger, an employee of Reuters. On or about May 11, 2001, plaintiff injured her back. Sometime thereafter, plaintiff was medically diagnosed with a back ailment for which her doctor believed she was "totally disabled." As a result of her disability, plaintiff requested from defendants and was granted a disability leave of absence. On or about June 2001, plaintiff filed a claim with the WCB seeking benefits. Despite Reuters' opposition to plaintiff's claim, the WCB issued a decision, dated on or about October 10, 2001, in favor of plaintiff awarding benefits and back pay. Approximately five (5) days after the WCB issued its decision, defendants informed plaintiff she was being terminated.

Sometime after she was to return to work and terminated, plaintiff commenced the instant plenary action against defendants. A review of plaintiff's complaint reveals plaintiff asserts two (2 ) causes of action. Plaintiff first cause of action sounds in employment discrimination based on an alleged disability, pursuant to Exec. Law §§ 292(1) and 292(6), and plaintiff's second cause of action similarly sounds in employment discrimination, pursuant to NYC Admin. Code § 8-102(1) (See, Defendant's Motion, Exh. A). In plaintiff's prayer for relief, she seeks damages for loss of back wages and benefits (including retirement), consequential damages, and damages for emotional distress and suffering for each cause of action.

A review of plaintiff's complaint filed with the WCB reveals she also alleged she was improperly terminated from her employment because she suffered from a disability and because she sought relief under the Worker's Compensation Laws. ("WCL"). (See, Defendant's Motion, Exh. C). More specifically, she claims she was terminated because she submitted a claim for worker's compensation benefits. Id. The allegations contained in plaintiff's WCB complaint mirrors those contained in the plenary action. In her prayer for relief before the WCB, plaintiff seeks "reinstatement, damages and all other relief" permissible under the WCL.

WORKERS' COMPENSATION LAW:

It is well settled that primary jurisdiction with respect to determinations as to the applicability of the WCL has been vested in the WCB. (Botwinick v. Ogden, 59 NY2d 909, 911, 466 NYS2d 291, 453 NE2d 520; O'Rourke v. Long, 41 NY2d 219, 391 NYS2d 553; Gyory v. Radgowski, 89 AD2d 867, 453 NYS2d 243; Smalls v. Kaufmann, 112 AD2d 986, 492 NYS2d 644). Stated differently, the WCB has exclusive jurisdiction over questions of fact and mixed questions of law and fact concerning the applicability of worker's compensation coverage (see, Liss v. Trans Auto Sys., 68 NY2d 15, 20-21, 505 NYS2d 831, O'Rourke v. Long, 41 NY2d at 222, 391 NYS2d 553; Gyory v. Radgowski, 89 AD2d at 869, 453 NYS2d 243). Thus, a litigant may not circumvent the WCB's jurisdiction and procedures by seeking relief in the courts system.(See, Cunningham v. State of New York, 60 NY2d 248, 252, 469 NYS2d 588). WCL § 120 provides in relevant part, "[i]t shall be unlawful for any employer or his or her duly authorized agent to discharge or in any other manner discriminate against an employee as to his or her employment because such employee has claimed or attempted to claim compensation from such employer..." The purpose of WCL § 120 which precludes retaliatory [*3]discharge for filing compensation claim is to protect employees from retaliation by an employer for filing claims for compensation on disability benefits. Johnson v. Moog, Inc., 114 AD2d 538, 494 NYS2d 152. Any claim for allege violation of WCL § 120 falls within the exclusivity of the Workers' Compensation Law ( See, Williams v Brooklyn Union Gas Co., 819 F Supp 214, 231; Burlew v American Mut. Ins. Co., 63 NY2d 412, 416, 482 NYS2d 720; Wehling v. Bayex, Inc., 248 AD2d 973, 670 NYS2d 277).



STAYS PURSUANT TO CPLR § 2201:

CPLR § 2201 provides in relevant part,[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just. A motion to stay a proceeding is primarily addressed to the discretion of the court. Pierre Associates, Inc. v. Citizens Cas. Co. of New York, 32 AD2d 495, 496, 304 NYS2d 158, 160 (1st Dept.1969). When the parties in two concurrent actions are identical, and the issues to be resolved overlap, a court in the exercise of its discretion may grant a stay of one of the proceeding. (See, CPLR 2201; El Greco, Inc. v. Cohn, 139 AD2d 615, 616-17, 527 NYS2d 256, 257; Middlebury Office Park Limited Partnership v. Gen. Datacomm Indus., Inc., 248 AD2d 313, 670 NYS2d 482; Bridgemarket Assoc. v. City of New York, 190 AD2d 561, 593 NYS2d 1016).

DISCUSSION:

While plaintiff asserts her claims in the plenary action, are distinct form those asserted before the administrative agency, such is not the case. Some of the very factual determinations which are to be resolved in the plenary action must similarly be resolved in the administrative proceeding. In particular, whether plaintiff was terminated from her employment as retaliation for filing and prevailing in her initial worker's compensation claim. Further it is undisputed that the parties in the actions are identical, if not identical then identical in interest, and there exist issues that overlap. In as much as WCB retains exclusive jurisdiction over any claim for allege violation of WCL § 120 and that concurrent proceedings may result in inconsistent factual determinations, the court in its discretions grants defendants' motion to stay pending resolution of plaintiff's WCB complaint.[FN1]

Movant is directed to serve a copy of this decision and order, with notice of entry, upon all parties via certified mail within 21 days hereof.

This constitutes the decision and order of the court.

Dated: March 9, 2004Hon.___________________________

NELSON ROMAN, J.S.C.

Footnotes

Footnote 1: The court notes plaintiff proffered no statutory or case law support for its position.