Melo v. JEWISH SERVS.

• Citation: 706 N.Y.S.2d 569,183 Misc.2d 776
• Court: United States State Supreme Court (New York)
• Decision Date: 13 December 1999
• Parties: EVELYN MELO et al., Plaintiffs,<BR>v.<BR>JEWISH BOARD OF FAMILY AND CHILDREN'S SERVICES, INC., et al., Defendants.

183 Misc.2d 776

706 N.Y.S.2d 569

EVELYN MELO et al., Plaintiffs,

v.JEWISH BOARD OF FAMILY AND CHILDREN'S SERVICES, INC., et al., Defendants.

December 13, 1999.

Sedgwick, Detert, Moran & Arnold (Kenneth R. Bozza of counsel), for Jewish Board of Family & Children's Services, Inc., defendant.

Mason & Breitenecker (Elizabeth A. Mason of counsel), for plaintiffs.

OPINION OF THE COURT

MELVIN S. BARASCH, J.

Defendant Jewish Board of Family and Children's Services, Inc., with its related entities as named in the verified complaint (hereinafter referred to as JBFCS), has moved for an order pursuant to CPLR 3211 and 3212 dismissing the plaintiff's complaint on the ground that all causes of action contained therein are barred by the provisions of Workers' Compensation Law § 11 et seq. The plaintiff, in turn, has cross-moved for an order (a) pursuant to CPLR 3211 (b) denying defendant's motion for failure to state a defense and (b) striking the defendant's affirmative defense of workers' compensation as insufficient as a matter of law pursuant to CPLR 3211 (b).

The instant lawsuit was commenced by the filing of the plaintiff's summons and verified complaint on or about October 16, 1998. Issue was joined as to defendant JBFCS by service of its answer on or about November 23, 1998. As set forth in the complaint, defendant Pearl Residence (Pearl) is the owner of the premises. Defendant JBFCS (and its wholly owned and operated subsidiary, Brooklyn Community Residence) leased the space from Pearl. Plaintiff Evelyn Melo alleges personal injuries sustained as a result of an attack, rape and robbery by an unidentified assailant inside the Brooklyn Community Residence located at 1380 36th Street in Brooklyn, New York. In her response to defendant's notice to admit dated December 18, 1998, as well as in her verified bill of particulars, plaintiff Evelyn Melo admitted that on the alleged date of the incident, she was an employee of and working for JBFCS. The affidavit of Ellen Josem, Esq., General Counsel for JBFCS, similarly reflects this information.

Defendant movant contends that plaintiff's tort action against it must be dismissed in accordance with the relevant provisions of the Workers' Compensation Law, which creates an exclusive remedy as to an employee who is injured during the course of employment. (Workers' Compensation Law § 11; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189; Duche v Star Recycling, 261 AD2d 503.) However, the gravamen of the plaintiff's cross motion is that the defendant has failed to demonstrate that the plaintiff was the victim of an accidental workplace injury, which would remove her cause of action from the ambit of workers' compensation.

An employee is entitled to receive compensation on a "no-fault" basis for all injuries "arising out of and in the course of the employment." (Workers' Compensation Law § 10 [1]; Matter of Johannesen v New York City Dept. of Hous. Preservation & Dev., 84 NY2d 129.) To effectuate the statutory objectives, Workers' Compensation Law § 21 (1) creates a presumption that injuries "arising out of and in the course of" employment are compensable under section 10 (1) as "accidents" (Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 251). Given the remedial nature of the Workers' Compensation Law, New York's courts have construed the statute with a view toward giving very wide latitude in determining whether a disabling condition is an accident (Matter of Johannensen v New York City Dept. of Hous. Preservation & Dev., supra, at 134) and the Court of Appeals has noted that an accidental injury must be gauged by the commonsense viewpoint of the average person. (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130, 134; Matter of Masse v Robinson Co., 301 NY 34, 37.)

There are only two exceptions to the finality and exclusivity provisions of the Workers' Compensation Law. The first, not an issue in this case, is where the employer fails to procure insurance for the purpose of securing the payment of compensation. (Workers' Compensation Law § 11; O'Rourke v Long, 41 NY2d 219.) The second is where the injury complained of is the product of an intentional and deliberate act of an employer directed at causing harm to an employee. (See, Matter of Blanchard v Integrated Food Sys., 220 AD2d 895; Acevedo v Consolidated Edison Co., 189 AD2d 497.)

Although plaintiff was the victim of a horrifying experience, she has failed to demonstrate that the exclusive remedy of workers' compensation does not preempt her right to maintain a tort action before this court. Contrary to her contention, defendant has presented ample proof of the fact that it employed the plaintiff at the time of the incident, and that the incident occurred during the course of, and arose out of, the plaintiff's employment. (See, Malacarne v City of Yonkers Parking Auth., supra.) Moreover, the central premise advanced by plaintiff— that this was not an accidental injury—is without merit.

As noted by the Court of Appeals, "The term of art, accidental injury, lacks a statutory definition" (Matter of Johannesen v New York City Dept. of Hous. Preservation & Dev., 84 NY2d 129, 136, supra). Plaintiff's argument that rape is not a compensable injury within the purview of the Workers' Compensation Law is unsupported in this context by the cited cases which plaintiff purports stand for this assertion. In Joshua S. v Casey (206 AD2d 839), the Appellate Division, Fourth Department, in granting a motion made by defendant employer to dismiss a claim of sexual abuse under the doctrine of respondeat superior, held that the alleged sexual assault by its employee was not within the scope of employment and could not be said to have been in furtherance of the employer's business. Similarly, in the cited First Department case of Nicollette T. v Hospital for Joint Diseases/Orthopaedic Inst. (198 AD2d 54), workers' compensation was not an issue and the Court, in affirming dismissal of the complaint, held that the employee's acts fell outside the scope of his employment. Equally unavailing is plaintiff's reliance on Noto v St. Vincent's Hosp. & Med. Ctr. (160 AD2d 656) or Curtis v City of Utica (209 AD2d 1024). All of these cases deal with the employer's liability for intentional tortious acts committed by an employee, and are irrelevant in this context. None support the plaintiff's contention that rape, as an intentional act, cannot be considered an accidental workplace injury.

Similarly misplaced is plaintiff's reliance on the language in Matter of Mintiks v Metropolitan Opera Assn. (153 AD2d 133). In Mintiks, the Workers' Compensation Board made an award of death benefits in connection with the murder of a violinist during a performance intermission, and the decedent's husband, who was seeking to pursue a wrongful death action, appealed. The Appellate Division, Third Department, remitted the matter to the Board for clarification as to whether the Board in fact weighed the available evidence and properly determined that the statutory presumption in favor of compensability as set forth in section 21 of...