Gagliardi v. Trapp

• Decision Date: 06 November 1995
• Citation: 221 A.D.2d 315,633 N.Y.S.2d 387
• Parties: Barbara GAGLIARDI, Appellant, v. Daniel TRAPP, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 387

633 N.Y.S.2d 387

221 A.D.2d 315

Barbara GAGLIARDI, Appellant, v. Daniel TRAPP, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 6, 1995.

Adam Ira Klein, P.C., New York City (Cheryl Glick of counsel), for appellant.

Paul A. Crotty, Corporation Counsel, New York City (Kristin M. Helmers and Deborah R. Douglas, of counsel), for respondents.

Before BALLETTA, J.P., and O'BRIEN, COPERTINO and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for assault and negligence, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated June 28, 1993, as granted the branches of the defendants' motion for summary judgment pursuant to CPLR 3212 which were to dismiss the first, second, and third causes of action and granted the branches of the defendants' motion which were to dismiss the sixth and seventh causes of action pursuant to CPLR 3211(a)(7).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, a correction officer at Riker's Island, alleged in her amended complaint that she suffered great physical and mental harm and was disabled when she was punched in the face by the defendant Darrell Harris, a fellow correction officer, while she attempted to break up a fight between Harris and another correction officer which occurred during the plaintiff's tour of duty. The plaintiff further alleged that her employers, the New York City Department of Correction and the City of New York, through their employees, "attempted to conceal the entire incident through acts of threat, harassment and coercion" and by reason of the foregoing "intentional and negligent conduct" were vicariously liable for the acts of their employees. She also alleged that the defendants discriminated against her on the basis of her sex, color, and/or national origin in violation of Executive Law § 296.

The Supreme Court correctly determined that since the plaintiff had already received benefits under the Workers' Compensation Law, she was barred from instituting an action sounding in negligence against her employer or coemployee (see, Workers' Compensation Law § 29[6]; Cunningham v. State of New York, 60 N.Y.2d 248, 250-251, 469 N.Y.S.2d 588, 457 N.E.2d 693; Samba v. Delligard, 116 A.D.2d 563, 497 N.Y.S.2d 419; see also, DiSpigna v. Lutheran Med. Center Parking, 170 A.D.2d 645, 646, 567 N.Y.S.2d 69). To warrant an exclusion from the exclusive remedy provision set forth under Workers' Compensation Law § 29(6), the plaintiff " 'must allege an intentional or deliberate act by the employer directed at causing harm to' the plaintiff" (Nash v. Oberman, 117 A.D.2d 724, 725, 498 N.Y.S.2d 449, quoting Mylroie v. GAF Corp., 81 A.D.2d 994, 995, 440 N.Y.S.2d 67, aff'd 55 N.Y.2d 893, 449 N.Y.S.2d 21, 433 N.E.2d 1269; see also, Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64). Allegations that the employer exposed the employee to a substantial risk of injury have been held insufficient to circumvent the exclusivity of the remedy provided by the Workers' Compensation Law (see, Nash v. Oberman, supra, at 725, 498 N.Y.S.2d 449; Orzechowski v. Warner-Lambert Co., supra; Mylroie v. GAF Corp., supra; Crespi v. Ihrig, 99 A.D.2d 717, 718, 472 N.Y.S.2d 324, aff'd 63 N.Y.2d 716, 480 N.Y.S.2d 205, 469 N.E.2d 526).

The plaintiff's allegations in the case at bar do not rise to the level required to fall outside the ambit of Workers' Compensation Law § 29(6). Taking the plaintiff's allegations as true, the defendants' conduct amounted,...