Adams-Thomas v City of New York

[*1] Adams-Thomas v City of New York 2010 NY Slip Op 52049(U) [29 Misc 3d 1227(A)] Decided on October 29, 2010 Supreme Court, Bronx County Tapia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2010
Supreme Court, Bronx County

Phellissia Adams-Thomas, Plaintiff,

against

The City of New York and STEWART MARTIN, an employee of the City of New York, Defendants.



24169-04



For Plaintiff: Mitchell Franzblau, Esq. of Belovin & Franzblau, LLP

For City of New York: Rachel Kish, Esq. of Michael A. Cardozo, Corporation Counsel of the City of New York

Fernando Tapia, J.

In this personal injury action, after review of the motion papers submitted by Co-Defendant City of New York ["City"] regarding its motion to amend its Answer nunc pro tunc to include Workers' Compensation as an affirmative defense to this civil matter, this Court hereby decides the following:

-City's motion to amend its Answer is GRANTED;

-City's motion under CPLR §§ 3211(a)(7) & 3212 to dismiss Plainitiff's Complaintas to City is GRANTED;

This Court discusses two issues regarding this motion: [1]were the tortious actions committed by Co-Defendant Mr. Martin [on August 9, 2003] under the direction of his employer, the City? [2] Did Ms. Adams-Thomas waive her right to sue her employer when she was awarded and received NYS Workers' Compensation as a result of her injuries caused by Mr. Martin himself?

With respect to the first issue, Mr. Martin's tortious conduct was committed on his own volition, and not at the direction of the City. The City may have been reckless by not pursuing [*2]Ms. Adams-Thomas's complaints about Mr. Martin's misbehavior[FN1] during work hours, but it did not direct Mr. Martin to injure Ms. Adams-Thomas. With respect to the second issue, since it is unequivocally clear that Plaintiff has received Workers' Compensation benefits, she waived her right to directly sue her employer for injuries caused solely by Mr. Martin.[FN2]

I.FACTUAL BACKGROUND

Plaintiff-Ms. Adams-Thomas was employed by the City of Parks and Recreation as a Parks Employment Participant Officer [front desk security guard] at Williams Bridge Oval Recreation Center. See Llanos Aff. at p. 10, lines 9-15. She belonged under the Recreational Program. Id. at lines 19-24.

Co-Defendant-Mr. Martin worked at the same location, as a maintenance worker under the Maintenance & Operations Department of the City of Parks and Recreation. Id.; see also Compl. at ¶ 4. His direct supervisor was Mr. Thomas Citek. See Citek Aff. at pp. 5-6. Mr. Juan Morales was also a supervisor of Mr. Martin's, although Mr. Morales does not recall that. See Morales Aff. at p. 6, lines 18-24.Ms. Adams-Thomas attested that one month prior to the incident, she saw Mr. Martin drinking beer during his work shift. See Adams-Thomas Supplemental Aff. at ¶ 8. She also lodged complaints against Mr. Martin to both Norma Llanos and Mr. Citek.[FN3] Id. Ms. Adams-Thomas also saw Mr. Martin put beer in the office refrigerator. Id. at ¶ 9.

On or about August 9, 2003, after she complained about Mr. Martin, he assaulted her during work hours. Id. at ¶ 11; see also Mr. Martin's Termination Form, Ex. B of Pl.'s Opp. On or about October 27, 2003, Plaintiff, through counsel, timely filed her Notice of Claim.

Ms. Adams-Thomas received worker's compensation benefits from August 10, 2003, through February 1, 2004. See City's Aff. at Ex. B. On or about October 12, 2004, Ms. Adams-Thomas, through counsel, filed her Summons and Complaint, demanding joint and several liability against the defendants for the tortious conduct committed by Mr. Martin. Id. at Ex. C. City then filed its Answer on or about November 29, 2004. Id.

On or about April 29, 2008, the Hon. Larry S. Schachner denied the City's motion to dismiss Plaintiff's Complaint. The Court, however, allowed Plaintiff to present additional proof that this case falls within the exception to the bar against personal injury claims under NYS Workers' Compensation. Id. at Ex. D.

On or about January 25, 2010, the City thus moved to amend its Answer so that it can include the following: "This action is barred by reason of the fact that Workers' Compensation is the exclusive remedy of the plaintiff." Id. at ¶ 6. [*3]

Ms. Adams-Thomas lived in Bronx, NY, at the time of the incident.

II.CITY'S MOTION TO AMEND DOES NOT PREJUDICE PLAINTIFF

Under CPLR 3025(b) ["Amendments and supplemental pleadings by leave"], a party may amend its pleadings at any time by leave of court or by stipulation. Leave shall be given freely upon such terms as may be just, including the granting of costs and continuances.

Furthermore, where there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay. Heller v. Louis Provenzano, Inc., 303 AD2d 20, 24 (App Div, 1st Dept 2003). Lastly, if the amendment sought does not add any new facts to the case, but seeks only to add a new ground in support of a defense, then the amendment is more likely to be allowed. See Connors, 2010 Practice Commentaries, McKinney's Workers' Compensation, C3025:8.

Here, Ms. Adams-Thomas received workers' compensation benefits from August 10, 2003, through February 1, 2004. She then filed a Complaint against the City and Mr. Martin for personal injuries on or about October 12, 2004. Her Complaint, therefore, compelled the City to bring this instant motion in order to properly defend its case.

Furthermore, Ms. Adams-Thomas was directed by the previous Court to provide more information showing exactly how her personal injury claim satisfies the "intentional" tortious conduct exemption under the WCL, permitting her to bring a viable claim against the City for personal injuries, after collecting worker's compensation benefits. The City's delay in filing this motion was directly attributable to the length of time it took Ms. Adams-Thomas to comply with Judge Schachner's request to provide more information.

Additionally, Ms. Adams-Thomas in her opposition, does not contest or address the City's 3025(b) portion of its motion with respect to how she would be prejudiced by such an amendment of the City's Answer. In point of fact, not only has Ms. Adams-Thomas failed to provide sufficient proof that the City's conduct was intentional, but the City has established that no undue delay exists or that such a delay is prejudicial to Ms. Adams-Thomas's claim.

III. THE EXCEPTION TO THE EXCLUSIVITY CLAUSE OF THE WCL DOES NOT APPLY TO MS. ADAMS-THOMAS BECAUSE THE CITY DID NOT INFLUENCE MR. MARTIN TO COMMIT A TORTIOUS ACT AGAINST MS. ADAMS-THOMAS

A. Mr. Martin Did Not Receive Direct, Express Orders From His Immediate Supervisors To Commit An Intentional Tort Upon Ms. Adams-Thomas

An "intentional tort" is a tort in which the actor is expressly or impliedly judged to have possessed intent or purpose to injure another. See Black's Law Dictionary, 6th ed. Furthermore, mere knowledge and appreciation of a risk is not the same as the intent to cause injury. See Acevedo v. Consolidated Edison Co. of New York, 189 AD2d 497, 501 (App Div. 1st Dept 1993) (where the First Department held that the case against ConEd could be dismissed on the basis [*4]that the plaintiff could not properly establish that the tortious act committed by ConEd amounted to willful intent; instead, such conduct amounted to gross negligence at best).

Here, Ms. Adams-Thomas attested at her April 12, 2004 50 (h) hearing that on August 9, 2003, Mr. Martin physically and verbally accosted her during her lunch hour, in retaliation of her trying to calm him down earlier that day at the recreation center. See Adams-Thomas Aff. at pp. 19-21. Although she had previously reported him regarding his alcohol abuse during work hours, all of the relevant immediate supervisors did not recall any complaints lodged against Mr. Martin's misbehavior.

According to Mr. Citek [Mr. Martin's supervisor], he had sparse conversations with Mr. Martin. See Citek Aff. at p. 11, lines 4-15. Mr. Citek also attested at his January 9, 2009 deposition that he does not believe that anyone complained to him about Mr. Martin's unprofessional behavior during work hours. Id. at p. 15, lines 6-18; p. 15, lines 2-17; p. 17, line 5-14.

More importantly, there was no direct command from Mr. Citek to Mr. Martin to confront Ms. Adams-Thomas. Id. at p. 22, lines 21-24. Even post-incident, Mr. Citek attested that he did not direct Mr. Morales[FN4] to memorialize the incident in writing. Id. at p. 23, lines 18-25.

According to Mr. Morales's sworn testimony during his March 9, 2009 deposition, his supervisor was Mr. Citek. See Morales Aff. at p. 9, lines 14-15. Like Mr. Citek, Mr. Morales was not aware of any complaints about any of his subordinates bringing/drinking alcohol to/at work. Id. at p. 11, lines 5-16.

In addition, Ms. Llanos attested that even though she received complaints from Ms. Adams-Thomas, Ms. Llanos did not memorialize them either. See Llanos Aff. at p. 18, lines 19-21. She also attested at her October 23, 2008 deposition that prior to the August 9, 2003 incident, she was not aware of Mr. Martin's misbehavior towards any of the city employees. Id. at p. 27, lines 10-13.

Moreover, Ms. Llanos stated that she did not know if Mr. Citek or Mr. Morales gave Mr. Martin a talking-to about his past work behavior. Id. at lines 5-9. Such inaction convinces this Court that Mr. Martin was not directed by his immediate supervisors to commit an intentional tort, or that Mr. Martin was instigated by Mr. Citek or Mr. Morales. See Martínez v. Canteen Vending Srvcs. Roux Fine Dining Chartwheel, 18 AD3d 274 (App Div, 1st Dept 2005) (where the First Department dismissed the case of the plaintiff-former employee could not establish that the defendant-employer acted within the scope of his employment at the time he attacked the plaintiff).

Although Mr. Martin's tortious conduct happened during work hours, such action was not committed within the scope of his employment because Mr. Martin did not get any directives [*5]from either Mr. Citek or Mr. Morales to slam Ms. Adams-Thomas against the recreation center's steel doors. See Adams-Thomas Aff. at p. 21, lines 9-22. Such an intentional tort was initiated and conducted by Mr. Martin himself.

Furthermore, the City itself [via Mr. Citek, Mr. Morales, and Ms. Llanos] did not commit an intentional tort towards Ms. Adams-Thomas. If anything, their inaction amounted to reckless, but not intentional conduct. Accordingly, Ms. Adams-Thomas cannot posit that the incident is an exception to the exclusivity of the WCL. A discussion continues below.

B. At Most, The City's Actions Amounted To Recklessness, Which is Different From An Intentional Tort

According to WCL § 11 ["Alternate remedy"], the liability of an employer shall be exclusive and in place of any other liability at common law or otherwise. That is, an employee can bypass the exclusivity rule of WCL § 11, as long as s/he can prove that an intentional tort was perpetrated by the employer, or else committed at the employer's direction. Acevedo, 189 AD2d at 500.

The employee must also prove that the employer's acts were deliberate and intentional, not merely reckless. Id. at 500-501. Injury resulting from the employer's negligence or recklessness are not exceptions to the exclusivity rule. Walker v. Weight Watchers Int'l et. al, 961 F. Supp. 32 (E.D.NY 1997); see also Minkowitz, 2004 Practice Commentaries, McKinney's Workers' Compensation, "Intentional Injury."

This Court agrees with the City that Ms. Adams-Thomas failed to prove that the City perpetrated the assault upon Plaintiff, or else directed the assault upon her. See City's Reply at ¶¶ 4 & 8; see also Martínez, 18 AD3d at 274. Although Ms. Adams-Thomas attested that she lodged at least four complaints against Mr. Martin regarding his alcohol use during work hours,[FN5] the fact that Mr. Citek, Mr. Morales, and Ms. Llanos took no action to chide Mr. Martin prior to his termination from his post convinces this Court that the City's actions were reckless.

The City thus cannot be held jointly liable for Mr. Martin's tortious act of punching Ms. Adam-Thomas in the face[FN6] because it did not direct him to commit that intentional tort. Instead, Mr. Martin is individually liable for his own independent actions.

IV. CONCLUSION

In sum, Ms. Adams-Thomas failed to prove that the personal injuries sustained from Mr. [*6]Martin qualify as an exception to the exclusivity rule of WCL § 11 because the tortious act committed by Mr. Martin was not under the direction of the City; nor was it perpetrated by the City.

WHEREFORE the City's motion is GRANTED in its entirety. The City is allowed to amend its Answer to include WCL as an affirmative defense. Plaintiff's Complaint is therefore DISMISSED, as to the City.

This constitutes the Decision of this Court.

Dated:October 29, 2010___________________________________

Bronx, NYHon. Fernando Tapia, A.J.S.C. Footnotes

Footnote 1: "Misbehavior" in the form of being verbally abusive towards employees and patrons at Williams Bridge Oval Recreation Center, as well as his alleged alcohol use during work hours.

Footnote 2: Under Workers' Compensation Law ["WCL"] §§ 11 & 29(6), when an employee is injured in the course of employment, that employee's sole remedy against the employer is compensation benefits. Thus, such benefits are the employer's exclusive liability towards the injured employee. Billy v. Consolidated Machine Tool Corp., 51 NY2d 152, 156 (App Ct. 1980).

Footnote 3: At the time of the incident, Ms. Llanos was the Center Manager at Williamsbridge Oval, and Ms. Adams-Thomas's direct supervisor. See Adams-Thomas Aff. at p. 12, lines 22-25.

Footnote 4: Mr. Morales was the City Park Worker Crew Chief under Mr. Citek, and a supervisor of Mr. Martin's.

Footnote 5: See Adams-Thomas Aff. at p. 22, lines 3-12.

Footnote 6: Id. at p. 26, lines 21-25.