Ferrara v. American ACMI
| Decision Date | 25 August 1986 |
| Parties | Austin FERRARA, Jr., et al., Appellants, v. AMERICAN ACMI, etc., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Solomon Abrahams, Hartsdale, for appellants.
Granik, Silverman, Sandberg, Campbell & Nowicki, New City (David W. Silverman, of counsel), for respondent American ACMI.
Louis D. Broccoli, Hartsdale (Allan A. DiSalvo, of counsel), for respondent Local 810.
Before MOLLEN, P.J., and THOMPSON, BROWN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Ingrassia, J.), dated December 20, 1985, which, inter alia, granted the defendant union's motion for summary judgment dismissing the complaint insofar as it is asserted against it, and (2) an order of the same court (Palella, J.), dated May 13, 1986, which granted the defendant American ACMI's motion to dismiss the complaint insofar as it is asserted against it.
Orders affirmed, with one bill of costs.
The plaintiff Austin Ferrara, a machine operator, was injured when an overhead exhaust head located above the machine on which he was working accidentally fell and struck him. Mr. Ferrara has applied for and is receiving workers' compensation benefits. Some 11 months after the accident, the plaintiffs commenced the instant action against Mr. Ferrara's employer, American ACMI and his union, Local 810 Steel, Metals Alloys and Hardware Fabricators and Warehousemen of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, alleging in substance, that the defendants had knowledge of the hazard which caused his injury and intentionally ignored it. In its motion to dismiss the complaint insofar as it is asserted against it, the defendant employer raised the defense of workers' compensation, arguing that the benefits received thereunder represent Mr. Ferrara's exclusive remedy for the injuries sustained. Special Term granted the employer's motion and dismissed the complaint as against it. We affirm. Viewed most favorably to the plaintiffs, the allegation that the defendant ACMI intentionally ignored a known "hazard" cannot be deemed to satisfy the case-law requirement of "[s]pecific acts" directed at causing harm to "particular employees" necessary to bring this case within the "intentional injury" exception to the exclusivity of the workers' compensation remedy (see, Mylroie v. GAF Corp., 81 A.D.2d 994, 440 N.Y.S.2d 67, affd. 55 N.Y.2d 893, 449 N.Y.S.2d 21, 433 N.E.2d 1269; Bardere v. Zafir, 102 A.D.2d 422, 424, 477 N.Y.S.2d 131, affd. 63 N.Y.2d 850, 482 N.Y.S.2d 261, 472 N.E.2d 37; Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 112-113, 460 N.Y.S.2d 64; Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266). Despite the plaintiffs' attempt to characterize the claim as one sounding in...
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