O'Connor v. Midiria

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore SIMONS
Citation446 N.Y.S.2d 739,85 A.D.2d 896
PartiesMichaeline O'CONNOR and Michael O'Connor, Respondents, v. Anthony MIDIRIA, and Michael Kane and Pizza Hut of North Haven, Inc., Appellants.
Decision Date11 December 1981

Page 739

446 N.Y.S.2d 739
85 A.D.2d 896
Michaeline O'CONNOR and Michael O'Connor, Respondents,
v.
Anthony MIDIRIA, and Michael Kane and Pizza Hut of North
Haven, Inc., Appellants.
Supreme Court, Appellate Division,
Fourth Department.
Dec. 11, 1981.

Page 740

Lamb, Webster, Walz, Donovan & Sullivan by Anthony Daniele, Rochester, for appellants.

Roder & DiNieri by Robert A. DiNieri, Clyde, for respondents.

Before SIMONS, J. P., and HANCOCK, CALLAHAN, DOERR and MOULE, JJ.

MEMORANDUM:

Plaintiffs, husband and wife, seek derivative and compensatory damages for personal injuries sustained by the wife. Defendants Kane and Pizza Hut of North Haven, Inc. have moved for summary judgment contending that plaintiffs' action is barred on two grounds. First, defendants contend that a determination of the Workers' Compensation Board in plaintiffs' favor forecloses the court from granting common law damages. Second, they contend that plaintiffs have failed to state a cause of action for recovery against them based on intentional tort. Plaintiffs, for their part, assert that the motion is barred by a prior order denying defendants' earlier, similar summary judgment motion. The motion is proper, however, because of a change in the status of plaintiffs' claims, namely, the subsequent decision of the Board, that plaintiff Michaeline O'Connor's injuries were compensable (cf. Abramoff v. Federal Ins. Co., 48 A.D.2d 676, 638 N.Y.S.2d 44).

The action arises out of a work related incident in which plaintiff Michaeline O'Connor, a waitress employed by Pizza Hut, was locked in a walk-in cooler, separate from the main restaurant, by her co-employee, defendant Midiria. Midiria then turned out the outside lights so that when plaintiff freed herself and ran to the restaurant she tripped and fell in the dark, fracturing a bone in her foot and otherwise injuring her leg and hip. In this action plaintiffs sue Midiria, Kane, the manager of the restaurant, and Pizza Hut for intentional injury to Michaeline O'Connor. It is plaintiffs' claim that the manager and employer are liable for Midiria's intentional acts because they had prior knowledge of his propensity for engaging in such conduct.

In Werner v. State of New York, 53 N.Y.2d 346, 441 N.Y.S.2d 654, 424 N.E.2d 541, the Court of Appeals held that a claimant who is awarded and accepts workers' compensation benefits is barred from an action against the employer for intentional assault. The first issue presented in this...

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3 practice notes
  • Orzechowski v. Warner-Lambert Co., WARNER-LAMBERT
    • United States
    • New York Supreme Court Appellate Division
    • March 7, 1983
    ...her employer for damages based on intentional tort" (O'Connor v. Midiria, 55 N.Y.2d 538, 539, 450 N.Y.S.2d 455, 435 N.E.2d 1070, affg 85 A.D.2d 896, 446 N.Y.S.2d In our view, O'Connor v. Midiria (supra ) is controlling in the case at bar. 2 In the O'Connor case (supra ), the plaintiff, Mich......
  • Jones v. State
    • United States
    • New York Supreme Court Appellate Division
    • November 4, 1983
    ...for damages under respondeat superior (see Thompson v. Maimonides Med. Center, 86 A.D.2d 867, 868, 447 N.Y.S.2d 308; O'Connor v. Midiria, 85 A.D.2d 896, 897, 446 N.Y.S.2d 739), for the offending employee's conduct, although intended by him, may be found accidental as to the employer and the......
  • O'Connor v. Midiria
    • United States
    • New York Court of Appeals
    • May 11, 1982
    ...an action by the employee against her employer for damages based on intentional tort. Accordingly, the order of the Appellate Division, 85 A.D.2d 896, 446 N.Y.S.2d 739, granting summary judgment to defendants should be affirmed, with This action arises out of an alleged intentional assault ......
3 cases
  • Orzechowski v. Warner-Lambert Co., WARNER-LAMBERT
    • United States
    • New York Supreme Court Appellate Division
    • March 7, 1983
    ...her employer for damages based on intentional tort" (O'Connor v. Midiria, 55 N.Y.2d 538, 539, 450 N.Y.S.2d 455, 435 N.E.2d 1070, affg 85 A.D.2d 896, 446 N.Y.S.2d In our view, O'Connor v. Midiria (supra ) is controlling in the case at bar. 2 In the O'Connor case (supra ), the plaintiff, Mich......
  • Jones v. State
    • United States
    • New York Supreme Court Appellate Division
    • November 4, 1983
    ...for damages under respondeat superior (see Thompson v. Maimonides Med. Center, 86 A.D.2d 867, 868, 447 N.Y.S.2d 308; O'Connor v. Midiria, 85 A.D.2d 896, 897, 446 N.Y.S.2d 739), for the offending employee's conduct, although intended by him, may be found accidental as to the employer and the......
  • O'Connor v. Midiria
    • United States
    • New York Court of Appeals
    • May 11, 1982
    ...an action by the employee against her employer for damages based on intentional tort. Accordingly, the order of the Appellate Division, 85 A.D.2d 896, 446 N.Y.S.2d 739, granting summary judgment to defendants should be affirmed, with This action arises out of an alleged intentional assault ......

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