Forshay v. Star Dairy Inc.

• Decision Date: 12 November 1992
• Citation: 589 N.Y.S.2d 696,187 A.D.2d 838
• Parties: James M. FORSHAY et al., Appellants, v. STAR DAIRY INC. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 696

589 N.Y.S.2d 696

187 A.D.2d 838

James M. FORSHAY et al., Appellants, v. STAR DAIRY INC. et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Nov. 12, 1992.

Gary Waldman, Monticello, for appellants.

Steven J. Smetana (Michael Seltzer, of counsel), New York City, for respondents.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.

CREW, Justice.

Appeals (1) from an order of the Supreme Court (Williams, J.), entered June 18, 1991 in Sullivan County, which, inter alia, granted defendants' cross motion for summary judgment dismissing the complaint, and (2) from an order of said court, entered October 11, 1991 in Sullivan County, which denied plaintiffs' motion for reconsideration.

On February 3, 1989, plaintiff James M. Forshay (hereinafter plaintiff) was injured while riding in a vehicle operated by defendant Harry J. Huffman. At the time of the accident, plaintiff was employed by Mountain Dairies Inc. Following joinder of issue, plaintiff moved to strike defendants' fifth affirmative defense, which asserted that plaintiff's causes of action were barred under the Workers' Compensation Law, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court, inter alia, granted defendants' cross motion and denied plaintiff's subsequent motion for reconsideration. These appeals followed.

At issue on appeal is whether plaintiff and Huffman were coemployees; if so, this action is barred under Workers' Compensation Law § 29(6) (see, Heritage v. Van Patten, 59 N.Y.2d 1017, 466 N.Y.S.2d 958, 453 N.E.2d 1247; cf., Kenny v. Bacolo, 61 N.Y.2d 642, 472 N.Y.S.2d 78, 460 N.E.2d 219). In support of their cross motion for summary judgment, defendants submitted affidavits by Huffman and the president of defendant Star Dairy Inc. and Mountain Dairies asserting that Huffman was employed by the latter company at the time of the accident. It is undisputed that plaintiff was employed by Mountain Dairies at that time. Defendants also submitted a wage and tax statement for 1989 showing Mountain Dairies as Huffman's employer. In our view, defendants met their burden of submitting admissible proof in evidentiary form that Huffman was plaintiff's coemployee; it was then incumbent upon plaintiff to submit proof in admissible form sufficient to create a triable issue of fact (see, Kennerly v. Campbell Chain Co., Campbell Chain Div. McGraw-Edison Co., 133 A.D.2d 669, 519 N.Y.S.2d 839). This plaintiff failed to do.

It is true that summary judgment will not be granted where self-serving exculpatory statements are made by parties having exclusive knowledge of the facts (see, Koen v. Carl Co., 70 A.D.2d 695, 416 N.Y.S.2d 396). Plaintiff argues that such is the case here and that further discovery is required to refute defendants' contentions. We disagree. Even if we accept that the question of whether Huffman and plaintiff were coemployees is within defendants' exclusive knowledge, the claim that further disclosure is needed is not persuasive insofar as plaintiff, by his own inaction, has failed to act diligently in attempting to obtain pretrial discovery (see, National Union Fire Ins. Co. of Pittsburgh, Pa. v. Glass Check Cashing Corp., 177 A.D.2d 419, 576 N.Y.S.2d 260; cf., Liberty Mut....