Barongi v Duralee Fabrics, Ltd.

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Barongi v Duralee Fabrics, Ltd. 2013 NY Slip Op 32237(U) September 12, 2013 Sup Ct, Suffolk County Docket Number: 11-14160 Judge: W. Gerard Asher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 11-14160 12-021990T CAL No. SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 32 - SUFFOLK COUNTY PRESENT: Won. W. GERARD ASHER Justice of the Supreme Court SUSAN BARONGI, Plaintiff, MOTION DATE 4- 16-13 ADJ. DATE 5-21-13 Mot. Seq. ## 002 - MG # 003 - MG; CASEDISP LAW OFFICES OF CHRISTOPHER P DIGIULIO, P.C. Attornejrs for Plaintiff 11 1 Johri Street, Suite 1615 New York, New York 10038 LINDA SIMMONS, ESQ. Attorney for Defendant Duralee Fabrics 350 Fifth Avenue, Suite 5949 New York, New York 10118 - against - DURALEE FABRICS, LTD. and LESLIE STEIN, Defendants. LAW OE FICE OF QUIRK & BAKALOR, P.C. Attorney,s for Defendant Leslie Stein 845 Third Avenue New York, New York 10022 Upon the following papers numbered 1 to 60 read on these motions &r summary iudgment : Notice of Motion/ Order to Show Cause and supporting papers 1 - 26; 38 - 54 ; Notice of Cross Moi:ion and supporting papers - Answering ; Affidavits and supportin,g papers 29 - 32; 55 - 57 ; Replying Affidavits and supporting papers 33-35; 58 - 60 ; Other 27 28; 36 - 37 Memoranda - L,aw ; ( of < ) it is, - ORDERED that the motion (#002) by defendant Leslie Stein and the motion (#003) by defendant Duralee Fabrics, Ltd. are consolidated for purposes of this determination; and it is ORDERED that the motion by defendant Leslie Stein for an order granting summary judgment in her favor is granted; and it is ORDERED that the motion by defendant Duralee Fabrics, Ltd., for an order granting summary judgment in its favor is granted. I [* 2] Barongi v Duralee Fabrics Index No. 11-14160 Page No. 2 Plaintiff Susan Barongi commenced this action to recover damages for personal injuries allegedly suffered as a result of an incident that occurred on June 15, 20 10 while at work. On that date, plaintiff, who was employed as a receptionist by defendant Duralee Fabrics, Ltd., allegedly was pushed twice in the back by her supervisor, defendant Leslie Stein. By her bills of particulars, plaintiff alleges, in relevant part, that Stein intentionally, recklessly, willfully and/or negligently assaulted and committed battery against the plaintiff, and that she intentionally, recklessly, willfully and/or negligently pushed the plaintiff into a door or other solid object. Plaintiff further alleges that Duralee Fabrics, acting through its officer, agent, servant and/or employee Leslie Stein, intentionally, recklessly, willfully and/or negligently assaulted, battered, struck and pushed her. She allegedly sustained various injuries due to the incident, including a disc herniation at level L4-L5, and lumbar sprain and strain, and has not worked at Duralee Fabrics since the date of the incident. Plaintiff subsequently applied for and was awarded workers compensation benefits for lost wages and medical treatment upon a finding of temporary disability due to a back injury. Stein now moves for summary judgment in her favor on the complaint, arguing that plaintiffs claim against her is precluded by the Workers Compensation Law. More specifically, Stein asserts that there is no evidence in the record that she intended to injure plaintiff (3rthat plaintiff was injured as a result of the June 2010 incident at work. In support of the motion, S t i n submits, among other things, copies of the pleadings and the bill of particulars; transcripts of the deposition testimony of plaintiff, Patricia Fletcher and Louise Lupo; sworn medical reports of Dr. A. Robert Tantleff; an unsworn medical report of Dr. Damanhuri Daniel Alkaitis; and photographs of the work area where the alleged incident happened. At Stein s request, Dr. Tantleff, a radiologist, reviewed filjns obtained from an x-ray examination and from magnetic resonance imaging (MRI) examinations of plaintiffs lumbar region. Dr. Alkaitis, a neurologist, conducted an examination of plaintiff in August 2012 on Stein s behalf. Plaintiff opposes the motion, arguing that Stein s intent to injure plaintiff may be inferred from the alleged act of pushing her from behind. Plaintiff also contends triable issues exist as to whether the incident occurred when Stein was in something of a rage, and whether it caused her physical injuries. In opposition, plaintiff submits an affidavit of Ana Frias, a former employee of Duralee Fabrics, averring that she saw Stein shove Susan Barongi in the direction of the doorway to the vestibule. She also submits uncertified medical records of her treating physician, Dr. Andrew T. Serpe, relating to her alleged injuries. Duralee Fabrics moves for summary judgment in its favor on the ground that the workers compensation benefits paid for lost wages and medical treatment is plaintiffs exclusive remedy for the injuries she allegedly sustained due to the incident with Stein. Duralee Fabrics also asserts that the allegations in the complaint are insufficient to state a legally cognizable claim outside the ambit of the Workers Compensation Law, and that the evidence in the record establishes that the exception for injury caused by an employer s intentional tort is not applicable. Duralee Fabrics submissions in support of the motion include transcripts of the parties deposition testimony, a copy of its workers compensation policy at the time of the accident, an affidavit of Joanne Helfgott, and various documents related to plaintiffs claim for workers compensation benefits. Plaintiff opposes the motion, arguing that Duralee Fabrics intent to cause injury to her can be inferred from the defendant s supervisory employee s [act of] deliberately shoving plaintiff, and submits a copy of Ana Fria s affidavit. [* 3] Barongi v Duralee Fabrics Index No. 11-14160 Page No. 3 A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,508 NYS2d 923 [ 19861; Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [ 19801; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 [ 19791). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923; Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595). Workers compensation is intended to be the exclusive remedy for unintentional injuries sustained during the course of employment (Workers Compensation Law $9 11,29 [6]; see Macchirule v Giamboi, 97 NY2d 147,736 NYS2d 660 [2001]; Burlew v American Mut. Ins. Co., 63 NY2d 412, 416,482 NYS2d 720 [1984]; Kruger v EMFT, Znc., 87 AD3d 717,5130 NYS2d 11 [2d Dept 201 I]; Hyman vAgtuca Realty Corp., 79 AD3d 1100,913 NYS2d 579 [2d Dept 20101, lv denied 16 NY3d 71 1, 923 NYS2d 415 [2011]; Pereira vSt. Joseph s Cemetery, 54 A133d 835, 864 NYS2d 491 [2d Dept 20081). However, the workers compensation exclusivity will not bar an injured plaintiff from seeking damages from an employer for injuries resulting from a tort intended to cause harm to the injured employee perpetrated by the employer or at the employer s direction vcevedo v Consolidated Edison Co. of N.Y., 189 AD2d 497,500,596 NYS2d 68 [lst Dept 19931, quoting Finch v Swingly, 42 AD2d 1035, 1036, 348 NYS2d 266 [4th Dept 19731; see Miller v Huntington Hosp., 15 AD3d 548,792 NYS2d 88 [2d Dept 20051; Orzechowski v Warner-Lambert Cu., 92 AD3d 110,460 NYS2d 64 [2d Dept 19831; Thompson v Maimonides Med. Ctr., 86 AD2d 867,447 NYS2d 308 [2d Dept 19821; Mylroie v GAFCorp., 81 AD2d 994,440 NYS2d 67 [3d Dept 19811, a f d 55 NY2d 893,449 NYS2d 21 [ 19821). Similarly, the Workers Compensation Law will immunize a coemployee from liability when both the plaintiff and the defendant were acting within the scope of their employment at the time of injury (Macchirule v Giamboi, 97 NY2d 147, 150, 736 NYS2d 660). The protection afforded by the Workers Compensation Law $ 29, therefore, does not extend to a coemployee who commits an intentional tort outside the scope of his or her employment (see Hanfard v Plaza Packaging Corp., 2 NY3d 348,778 NYS2d 768 [2004]; Maines v Cronumer Val. Fire Dtpt., 50 NY2d 535,429 NYS2d 622 [ 19801; Botway v National Response Corp., 5 1 AD3d 704, 858 NYS2d 3 11 [2d Dept 20081). Furthermore, to constitute an intentional tort, the conduct by the employer or coemployee must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as an intent to cause injury . . . A result is intended if the act is done with the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue (Finch v Swingly, 42 AD2d 1035, 1036,348 NYS2d 266). Initially, the Court notes that the unsworn medical report of Dr. Alkaitis was not in admissible form and, therefore, was not considered in the determination of Stein s summary judgment motion (see Grass0 v Angerami, 79 NY2d 813,580 NYS2d 178 [1991]; Kirbis v LPCiminelli, Inc., 90 AD3d 1581, 935 NYS2d 783 [4th Dept 201 13; Kotlyar v Stroguv, 58 AD3d 693,871 NYS2d 662 [2d Dept 20091; 1212 Ocean Ave. Huus. Dev. Corp. v Brunatti, 50 AD3d 1110,857 N YS2d 649 [2d Dept 20081; Municipal Testing Lab., Inc. v Brom, 38 AD3d 862, 833 NYS2d 562 [2d Dept], appeal dismissed 8 NY3d 1004,839 NYS2d 444 [2007]; Mazzola v City ofNew York, 32 AD3d 906, 821 NYS2d 247 [2d [* 4] Barongi v Duralee Fabrics Index No. 11-14160 Page No. 4 f Dept 20061; see generally Zuckerman v City o New York, 49 NY2tl557,427 NYS2d 595). The Court also did not consider the unaffirmed report and uncertified office records of Dr. Serpe submitted by plaintiff, as they were not in admissible form (see Grass0 v Angerarni, 79 NY2d 813, 580 NYS2d 178; Kirbis v LPCiminelli, Inc., 90 AD3d 1581, 935 NYS2d 783; Kotlya,r vstrogov, 58 AD3d 693, 871 f NYS2d 662; Matter o Kai B., 38 AD3d 882,834 NYS2d 216 [2d Dept 20071; Kashman v Flushing Hosp. & Med. Ctr., 224 AD2d 590,638 NYS2d 687 [2d Dept 19961). Duralee Fabrics motion for summary judgment dismissing the complaint against it is granted. The determination by the Workers Compensation Board that plaintiff was entitled to workers compensation benefits is a final and conclusive determination barring this action against Duralee Fabrics for personal injuries (see O Connor vMidiria, 55 NY2d 538,450 NYS2d 455 [1982]; Werner v State ofNew York, 53 NY2d 346,441 NYS2d 654 [1981]; Hyman vAgtuca Realty Corp., 79 AD3d 1100, 913 NYS2d 579; Orzechowski v Warner-Lambert Co., 92 AD2d 110,460 NYS2d 64). Moreover, there is no allegation in the complaint and no evidence in the record that Duralee Fabrics directed, instigated f or participated in the alleged incident against plaintiff (see Doe v State o New York, 89 AD3d 787, 933 Fine Dining Chartwheel, 18 NYS2d 688 [2d Dept 201 11; Martinez v Canteen Vending Servs. ROUX AD3d 274,795 NYS2d 16 [lst Dept 20051; see also Pereira v St. Joseph s Cemetery, 54 AD3d 835, 864 NYS2d 491; cjy Kruger v EMFT, Inc., 87 AD3d 717,930 NYS:!d 11 [2d Dept 201 11). Plaintiffs unsubstantiated and conclusory assertion that Stein s alleged conduct is evidence of Duralee Fabrics intent to cause her injury is insufficient to defeat Duralee Fabrics motion for summary judgment (see Zuckerman v City o New York, 49 NY2d 557,427 NYS2d 595). f Stein s motion for summary judgment dismissing the complaint against her also is granted. When questioned about the alleged pushing incident at an examination before trial, plaintiff testified that Stein had become angry with her the morning of the incident after leerning plaintiff had disregarded Stein s direction to not forward phone calls to Duralee Fabrics phone number made by an employee s husband to the employee, Patricia Fletcher. Plaintiff testified that Stein became very angry and was yelling at the top of her lungs when she heard a call from Fletcher s husband had been put through to Fletcher by plaintiff; and that Stein directed she and Fletcher leave thzir work stations and meet with her in the vestibule. Plaintiff testified that after she left the reception desk, as she was opening the door to the vestibule, Stein, who was walking behind her, pushed on her lower back and she jolted forward. Plaintiff testified that after the first push she realized she still was wearing the headphones used at the reception desk when answering phone calls, and that, before she could turn around to return them, Stein pushed a second time on her lower back. She testified that she jolted forward and her hands came in contact with the door to the vestibule following the second push. Further, plaintiff testified that after the second push to her back, she returned the headphones to the receptior area, met with Stein and Fletcher in the vestibule, and then returned to her work station. She testified that she reported the incident to a supervisor, Joanne Helfgott, and then worked the rest of the day. In addition, she testified that she felt pain in her lower back the next day and sought treatment for the pain from her physician later that same week. In contrast, Louise Lupo, an employee of Duralee Fabrics who was present when the subject incident occurred, testified at an examination before trial that Stein, not plaintiff, opened the door to the [* 5] Barongi v Duralee Fabrics Index No. 11-14160 Page No. 5 vestibule and held it open as plaintiff walked from the work area into the vestibule. Lupo testified that after walking from her desk to the door to the vestibule door, plaintiff returned to the reception desk with the headphones and then walked back, through the door, to the vestibule. She testified that she did not observe Stein push plaintiff in the back or any other physical contact between them. Fletcher testified at an examination before trial that as Stein was holding open the door to the vestibule, plaintiff walked to the door and then began walking backwards when she realized the headphones she was wearing were still connected to the switchboard. She testified plaintiff and Stein collided in the doorway, as plaintiff was walking backwards toward the reception desk and Stein was walking into the vestibule. Stein met her burden on the motion by establishing that plaintiff received workers' compensation benefits for her alleged injuries and that she was acting within the scope of her employment at the time of the incident (see Macchirole v Giamboi, 97 NY2d 147,736 NYS2d 660; DiTommaso v Marino, 6 AD3d 572,774 NYS2d 816 [2d Dept 20041; Gagliardi v Trapp, 221 AD2d 315,633 NYS2d 387 [2d Dept 19951). Stein further established a lack of intent to cause physical injury to plaintiff (cf Maines v Cronomer Val. Fire Dept., 50 NY2d 535,429 NYS2d 622; Botway 1.1National Response Coup., 5 1 AD3d 704,858 NYS2d 3 11; Matter of Wanji W., 277 AD2d 243,715 NYS2d 676 [2d Dept 20001). In opposition, plaintiff failed to submit evidence raising a triable issue a; to whether Stein intended to cause her physical harm (see Bulk v Di Lorenzo, 142 AD3d 707,53 1 NYS2d 107 [2d Dept 19881). Contrary to the assertion by plaintiffs counsel, the evidence in the record, viewed in the light most favorable to plaintiff (see Green v Quincy Amusements, Znc., 108 AD3d 591,2013 NY Slip Op 05188 [2d Dept 20131; Giraldo v Twins AmbuletteServ., Inc., 96 AD3d 903,946 NYS2d 871 [2d Dept 20121; Boyd v Rome Realty Leasing Ltd. Patnership, 21 AD3d 920,801 N'I'S2d 340 [2d Dept 2005]), demonstrates that any physical contact that may have occurred betwem Stein and plaintiff involved merely petty shoves that did not cause plaintiff to fall or even stumble. The Court notes that while plaintiffs deposition testimony that Stein was angry at the time of the incident may be evidence as to the question of motive, it does not, as plaintiffs counsel argues, constitute evidence of intent to cause harm (see People v Molineux, 168 NY 264,297,61 NE 86 [1901]). Accordingly, the motions by Stein and Duralee Fabrics for summary judgment dismissing the complaint are granted. J.S.C. X FINAL DISPOSITION NON-FINAL 1)ISPOSITION

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