Nwankwo v City of New York

[*1] Nwankwo v City of New York 2008 NY Slip Op 52554(U) [21 Misc 3d 1148(A)] Decided on December 17, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2008
Supreme Court, Kings County

James M. Nwankwo and Ayodeji Festus, Plaintiff,

against

The City of New York, New York City Police Department and Richard Reilly, Defendant.



6836/08



The plaintiffs are represented by the law firm of Manoussos & Associates , P.C., by Michael Manoussos, Esq., of counsel,

the defendants the City of New York and Richard Reilly are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Dana Wiczyk, Esq., of counsel.

Robert J. Miller, J.

The plaintiffs James Nwankwo ("Nwankwo") and Ayodeji Festus ( Festus) move prior to the service of a summons and complaint by order to show cause to compel the defendants, the City of New York, New York City Police Department and Richard Reilly (collectively the "City") to preserve evidence, particularly radio transmissions, video tapes and recordings. The City opposes the motion on the grounds that plaintiffs were improperly seeking pre-trial discovery. During the pendency of the motion, plaintiffs served their summons and complaint. The City now cross-moves for an order granting leave to amend their answer pursuant to CPLR §3025 to assert an affirmative defense that Nwankwo's action is barred by The Workers' Compensation Law and for dismissal of the complaint pursuant to CPLR §3211 or, in the alternative, granting summary judgment pursuant to CPLR §3212.

Plaintiff Nwankwo was involved in an automobile accident on October18, 2007 at the intersection of Sheffield Avenue and Pitkin Avenue, Brooklyn NY There were three automobiles involved in the accident: Nwankwo's, a New York City Police (NYPD) vehicle operated by defendant Reilly and a third vehicle operated by Keith Burton who was struck by Nwankwo's vehicle after the NYPD vehicle and Nwankwo's car made impact. Plaintiffs commenced the action on March 4 , 2008 by service of a summons and complaint and the City joined issue by serving an answer on March 31, 2008.

Plaintiff Nwankwo is employed by the City of New York as a supervisor for the Department of Homeless Services. A Workers' Compensation hearing was held on May 15, 2008 and Administrative Law Judge Barbara Colodner issued a decision holding that Nwankwo's injury was work related. Pursuant to the decision, medical payments were [*2]made for the benefit of plaintiff Nwankwo totaling $404, 706.45, paid as of June 6, 2008. (Plaintiff Festus is the wife of Nwankwo and asserts a derivative claim)

The City's motion for leave to amend the answer to assert a defense that the action is barred by the Workers' Compensation Law is granted. The City's motion to amend was made only three months after the service of the complaint and there is an absence of prejudice as evidenced by the plaintiff's opportunity to respond to the current motion. (Murray v City of New York, 43 NY2d 400 [1977].) Further, Nwankwo cannot claim prejudice where, as here, he has already received Workers' Compensation benefits. (Singh v Shafi, 252 AD2d 494 [2d Dept].)

Workers' Compensation Law §10 mandates that employers, including the City of New York, pay compensation to employees who receive injuries in the course of their employment.Since Nwankwo is employed by the City of New York, it is his obligation to allege and prove non-coverage. (O'Rourke v Long, 41 NY2d 219 [1976], Murray v New York, 43 NY2d 400 [1977].) Since Workers' Compensation is an exclusive remedy, Nwankwo must allege and prove it's unavailability to prevail on a theory of negligence. Since it is clear that Nwankwo did receive Workers' Compensation benefits, he cannot now claim that there is non-coverage. ( O'Connor v Midera, 55 NY2d 538 [1982]).

Plaintiff has also brought a claim against the driver of the NYPD vehicle, Richard Reilly. The Workers' Compensation Law bars recovery against workers employed by the same employer as long as there has not been the commission of a intention tort against the plaintiff. (Workers Compensation Law §29(6), Macchirole v Giamboi, 97 NY2d 147 [2001].) No such intentional torts have been alleged in this case.

Pursuant to Workers' Compensation Law §10(1), plaintiff Nwankwo asserts that he is not limited to Workers' Compensation as an exclusive remedy because he was working outside the scope of his employment, as the accident occurred during his lunch time and not during the scope of his employment.

The Court of Appeals has held that a determination from a Workers' Compensation Board that the injuries occurred within the scope of employment "is binding between the parties under the exclusive remedy and finality provision of the Workers Compensation law" (O'Connor v Midera, 55 NY2d 538 [1982].) The rule applies even where, as in O'Connor, a determination regarding benefits is made ex parte as the Court found that the Board's determination was binding because plaintiff was given notice of the proceedings.

In accord and in a case with facts closely parallel to the case before the Court,

in Dupkanicova v James, 17 AD3d 627 [2d Dept 2005], the Appellate Division found that even where plaintiff had not applied for benefits, as plaintiff asserts here (Nwankwo's wife originally applied for the benefits), that the board's determination was final.

An adjudication by the Workers' Compensation Board that an employee is entitled to receive benefits precludes recovery in a personal injury action. (Liss v Trans Auto System, Inc., 68 NY2d 15 [1986]). It is against public policy to permit further litigation on the question that was before the Board and would be inconsistent with the purpose of the exclusive remedy intended by the Workers' Compensation law. (Werner v State of New York, 53 NY2d 346 [1981]).

The Court notes that although the City did not assert collateral estoppel as an affirmative defense that the action would be also barred by the doctrine of collateral estoppel as Nwankwo is [*3]seeking to re-litigate an issue of fact and/or law previously determined by the Workers' Compensation Board. (Ryan v New York Telephone Company , 62 NY2d 494 [1984].)

Plaintiff's assertion here that the Workers' Compensation Board did not properly determine benefits is a collateral attack on a proceeding that has already been determined. The Workers Compensation Board "scratch sheet"lists that the plaintiff Nwankwo was present at the May 15, 2008 hearing and was afforded a full opportunity in the administrative hearing to raise all issues. Moreover, Nwankwo's counsel acknowledged at oral argument that plaintiff has not sought to overturn on appeal the Workman Compensation Board ruling

Accordingly, the City's cross- motion pursuant to CPLR §3025 to amend their answer is granted and the motion pursuant to CPLR §§3211 and 3212 to dismiss the complaint is granted. The relief sought in the order to show cause by plaintiffs is denied as moot in light of the forgoing decision.

The Clerk of the Court is directed to dismiss the complaint with prejudice.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

December 17, 2008