Finch v. Swingly

Decision Date26 October 1973
PartiesBernard R. FINCH, Respondent, v. Richard W. SWINGLY, Jr., dba Dick Swingly Garage and Service, Appellant.
CourtNew York Supreme Court — Appellate Division

Winchell, Connors & Corcoran, Richard M. Brindisi, Rochester, for appellant.

Frank & Feinstock, Carl L. Feinstock, Rochester, for respondent.

Before GOLDMAN, P.J., and WITMER, CARDAMONE, SIMONS and HENRY, JJ.

MEMORANDUM:

This appeal is from an order of Special Term, Monroe County which denied defendant's motion to dismiss the complaint. It is alleged in the complaint that on June 30, 1972 the plaintiff was an employee of defendant Swingly and 'engaged in and within the course of his employment' working underneath an automobile hoist in defendant's garage when the lift collapsed and injured him. The other defendants are the owner of the premises and the American Oil Company. The conduct complained of was that the defendant acted wilfully and wantonly in his negligent direction to plaintiff to use the lift at a time when defendant knew it was defective, in his failure to warn plaintiff of the unsafe condition of the lift although defendant was aware of the fact, and directing the plaintiff to use a safety device to operate the lift which he knew to be improper and unsafe. Section 10 of the Workmen's Compensation Law provides that compensation shall be the exclusive remedy for disability or death to an employee arising out of and in the course of the employment. Section 11 permits an action at common law as an alternative remedy in the event that the employer fails to secure the payment of compensation. In such a case, to state a valid cause of action against the employer, the plaintiff must allege and prove the failure to secure compensation (Kuhn v. City of New York, 274 N.Y. 118, 128--129, 8 N.E.2d 300, 303, 304; Gardner v. Shepard Niles Crane & Hoist Corp., 268 App.Div. 561 52 N.Y.S.2d 313; Culhane v. Economical Garage, Inc., 195 App.Div. 108, 186 N.Y.S. 454). This complaint is deficient because it fails to do so. Plaintiff contends that the course of action is not barred by the Workmen's Compensation Law because the claim is for injuries caused intentionally, not accidentally, by the employer. Where injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the employer's direction, the Workmen's Compensation Law is not a bar to a common law action for damages (Lavin v. Goldberg Building Material Corp., 274 App.Div. 690, 87 N.Y.S.2d 90; DeCoigne v. Ludlum Steel...

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  • Vumbaca v. Terminal One Grp. Ass'n L.P.
    • United States
    • U.S. District Court — Eastern District of New York
    • April 20, 2012
    ... ... Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266, 266 (4th Dep't 1973); see also, e.g., McGroarty v. Great Am. Ins. Co., 43 A.D.2d 368, 351 N.Y.S.2d ... ...
  • Merritt v. Shuttle, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • July 15, 1998
    ... ... Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266, 268 (1973). Allegations of gross negligence or reckless conduct by the employer are not sufficient to ... ...
  • N.A.A.C.P. v. Acusport, Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • July 21, 2003
    ... ... v. Good Shepherd Episcopal Church, 146 Misc.2d 500, 550 N.Y.S.2d 981, 988 (1989); Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266, 268 (1973). There is no need to prove that defendants acted ... Page 488 ... for the purpose of ... ...
  • National Ass'n for the Advancement v. Acusport, Inc., 99 CV 3999 (JBW) (E.D.N.Y. 7/21/2003)
    • United States
    • U.S. District Court — Eastern District of New York
    • July 21, 2003
    ... ... v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981, 988 (Sup.Ct. 1989); Fitch v. Swingly, 348 N.Y.S.2d 266, 268 (App.Div. 4th Dep't 1973). There is no need to prove that defendants acted for the purpose of causing harm to the public; the ... See, e.g., Finch v. Swingly, 348 N.Y.S.2d 266 (App.Div. 4th Dep't 1973) ("A mere knowledge and appreciation of a risk is not the same as the intent to cause injury." ... ...
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