Mera v. Adelphi Mfg. Co., Inc.

• Decision Date: 09 April 1990
• Citation: 553 N.Y.S.2d 826,160 A.D.2d 781
• Parties: Raphael MERA, et al., Respondents, v. ADELPHI MANUFACTURING CO., INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 826

553 N.Y.S.2d 826

160 A.D.2d 781

Raphael MERA, et al., Respondents, v. ADELPHI MANUFACTURING CO., INC., Appellant, et al., Defendants.

Supreme Court, Appellate Division,

Second Department.

April 9, 1990.

Raymond C. Green, Great Neck (Waxman, Miller & Trautwig, P.C., Michael Majewski, of counsel), for appellant.

Before BROWN, J.P., and EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant Adelphi Manufacturing Co., Inc., appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated September 30, 1988, which denied its motion to dismiss the complaint as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against Adelphi Manufacturing Co., Inc., and the action against the remaining defendants is severed.

The plaintiff Raphael Mera was injured when operating a power press in the course of his employment with Adelphi Manufacturing Co., Inc. (hereinafter Adelphi). He applied for and accepted workers' compensation benefits in the amount of $16,437.65. Some time thereafter, Mera and his wife commenced the instant action to recover damages against Adelphi, among others, alleging that Adelphi "intentionally, deliberately and willfully instructed, directed, permitted and/or otherwise allowed" its employees to operate power presses from which the safety guards had been removed, in order to increase productivity. Adelphi subsequently moved to dismiss the complaint on the ground that the action was barred by workers' compensation. The motion was denied, without opinion, and we hereby reverse.

With very limited exceptions, workers' compensation is the sole and exclusive remedy available to an employee injured during the course of his employment as against his employer (see, Workers' Compensation Law § 11; O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347). Moreover, where, as here, an employee applies for and accepts workers' compensation benefits, he is deemed to have elected his remedy and thereby forfeited his right to proceed by way of common-law tort (see, Cunningham v. State of New York, 60 N.Y.2d 248, 469 N.Y.S.2d 588, 457 N.E.2d 693; O'Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455, 435 N.E.2d 1070; Werner v. State of New York, 53 N.Y.2d 346, 441 N.Y.S.2d 654, 424 N.E.2d 541).

While an exception to the exclusivity rule exists "where the injury is the product of 'an intentional or deliberate act by the employer directed at causing harm to [that] particular employee ' (Mylorie v. GAF Corp., 81 A.D.2d 994, 995, 440 N.Y.S.2d 67, affd. 55 N.Y.2d 893, 449 N.Y.S.2d 21, 433 N.E.2d 1269; emphasis supplied)" (Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 112, 460 N.Y.S.2d 64), the allegations contained in the complaint are insufficient to permit the inclusion of the plaintiff Raphael Mera within the exception (see, ...