Garcia v. Gusmack Restaurant Corp.
| Decision Date | 27 January 1954 |
| Citation | 150 N.Y.S.2d 232 |
| Parties | Enrique C. GARCIA, Plaintiff, v. GUSMACK RESTAURANT CORPORATION and James J. McHale, Defendants. |
| Court | New York City Court |
Samuel E. Frederick, New York City, for plaintiff.
Cohen, McGuirk & Michels, New York City, David E. Fisher, New York City, of counsel, for defendants.
This is a motion by the defendant to amend its answer herein to set up as a separate defense facts which would relegate the plaintiff to a claim solely in Workmen's Compensation.
The plaintiff, a porter and general utility man employed by the defendant-corporation, alleges that he was violently assaulted by James J. McHale, its president and the person in charge of the operation of the Gaiety Bar and Restaurant, located at 750 Eighth Avenue, New York City; that such violent assault arose out of a dispute between the plaintiff and the defendant McHale in regard to money matters. While the Court could take judicial notice that the operation of a bar and grill is one fraught with evil potentialities in that both customers and employees might imbibe too freely and consequently incidents such as the case at bar may arise, there is nothing in the complaint nor the moving papers herein that would indicate that the occurrence was a result of the use of intoxicating beverages by either of the combatants.
It would be anomalous to permit a defendant which, as in this case, acting through its officer assaulted the plaintiff herein, to say, 'I can assault you with impunity and the only remedy you have is to take Workmen's Compensation which I have provided for you.' It would place a premium on the acts or actions of an employer to permit him immunity from an action at law under these circumstances. Certainly under these facts he should not be permitted to pick his own tribunal for the determination thereof.
An exhaustive research by the Court finds no case supporting the views of the defendant herein. It is true, if this plaintiff desired, he could file a claim in Workmen's Compensation and accept the advantages and benefits conferred on persons in his category. There is, however, no provision of the Workmen's Compensation Law or any decision which the Court can find which compels him to take compensation as his sole remedy. This principle was enunciated in De Coigne v. Ludlum Steel Co., 251 App.Div. 662, 297 N.Y.S. 636, 639, where the Court held: 'No case has been called to our attention, nor has our own research disclosed any, where it has been held that one who willfully assaults a workmen while in the course of his employment, be he employee, an employer, or a stranger, when sued for the tort can successfully defend on the ground that the plaintiff and his employer are subject to the Workmen's Compensation Law, and that his sole remedy is thereunder.'
To the same effect is Le Pochat v. Pendleton, 187 Misc. 296, 63 N.Y.S.2d 313, 316, affirmed 271 App.Div. 964, 68 N.Y.S.2d 594. Upon a motion to strike out the defense of the Workmen's Compensation Law, the Court in granting the motion cited De Coigne v. Ludlum, supra, and held: 'Plainly, the Workmen's Compensation Law deals with and has application to accidental injuries arising out of and in the course of employment and not to a willful assault by an employer upon an employee, and the defense assailed cannot be availed of by the defendant herein.'
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