Artonio v. Hirsch

• Decision Date: 27 May 1957
• Citation: 163 N.Y.S.2d 489,3 A.D.2d 939
• Parties: Vincent ARTONIO, respondent, v. Alexander P. HIRSCH, Henry Hirsch, David Hirsch, Arthur Richenthal, Emanuel Miller and Welbilt Corporation, appellants.
• Court: New York Supreme Court — Appellate Division

Page 489

163 N.Y.S.2d 489

3 A.D.2d 939

Vincent ARTONIO, respondent, v. Alexander P. HIRSCH, Henry Hirsch, David Hirsch, Arthur Richenthal, Emanuel Miller and Welbilt Corporation, appellants.

Supreme Court, Appellate Division, Second Department.

May 27, 1957.

David Abrams, Brooklyn, for appellants, Irving M. Moss, New York City, on the brief.

Samuel Douglas, Brooklyn, for respondent.

Before NOLAN, P. J., and WENZEL, MURPHY, UGHETTA and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In an action by an employee against Welbilt Corporation, his employer, and certain individuals who are officers, directors and stockholders of said corporation, to recover damages for personal injuries sustained in the course of his employment, the appeals are from two orders denying motions to dismiss the complaint pursuant to rule 106 of the Rules of Civil Practice. The complaint alleges, in substance, that respondent was injured as a result of the appellants' willful, reckless and unlawful acts in locking, or tempering with, safety devices on a power press which he operated. The motions were denied on the ground that the complaint did not allege an accidental injury, for which the Workmen's Compensation Law provided the exclusive remedy, but pleaded a wanton and deliberate act by the employer for which the employee could maintain a common-law cause of action.

Order denying motion made by appellant Richenthal affirmed, without costs. No opinion.

Order denying motion made by the appellants other than Richenthal modified by striking from the ordering paragraph 'in all respects denied' and by substituting therefor 'granted as to defendant Welbilt Corporation, and in all other respects denied.' As so modified, order affirmed, with $10 costs and disbursements to appellant Welbilt Corporation, and with leave to serve an amended complaint within 10 days after the entry of the order hereon, if respondent be so advised.

In our opinion the complaint pleads a cause of action for injuries suffered by a workman as a result of an industrial accident in a covered employment, for which the Workmen's Compensation Law accords immunity from an action for damages to the employer and co-employees responsible therefor, acting in the course of their employment. Cf. Barrencotto v. Cocker Saw Co., 266 N.Y. 139, 194 N.E. 61; Mazarredo v. Levine, 274 App.Div. 122, 125, 80 N.Y.S.2d 237, 239; Legault v. Brown, 283 App.Div. 303, 127 N.Y.S.2d 601. The complaint does not allege that the employer has failed to provide the compensation required by that law and is, therefore, insufficient. Kuhn v. City of New York, 274 N.Y. 118, 128-129, 8 N.E.2d 300, 303-304; Culhane v. Economical Garage, 195 App.Div. 108, 186 N.Y.S. 454; Gardner v. Shepard Niles Crane & Hoist Corp., 268 App.Div. 561, 563-564, 52 N.Y.S.2d 313, 314-315, affirmed 296 N.Y. 539, 68 N.E.2d 609; Lazar v. Steinberg, 269 App.Div. 760, 54 N.Y.S.2d 859. Cases such as De Coigne v. Ludlum Steel Co., 251 App.Div. 662, 297 N.Y.S. 636; and Le Pochat v. Pendleton, 187 Misc. 296, 63 N.Y.S.2d 313, affirmed 271 App.Div. 964, 68 N.Y.S.2d 594, relied on by respondent, are readily distinguishable. They involve not accidental injuries, but deliberate, wanton harm to the employee, such as intentionally placing a deleterious substance in food furnished him, or assaulting him. Nor is respondent aided by the allegations...