Orzechowski v. Warner-Lambert Co., WARNER-LAMBERT

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore GULOTTA; GULOTTA
Citation460 N.Y.S.2d 64,92 A.D.2d 110
PartiesTadeusz ORZECHOWSKI, et al., Plaintiffs; John Bimbo, et al., Appellants, v.COMPANY, et al., Respondents; et al., Defendants.
Docket NumberWARNER-LAMBERT
Decision Date07 March 1983

Page 64

460 N.Y.S.2d 64
92 A.D.2d 110
Tadeusz ORZECHOWSKI, et al., Plaintiffs;
John Bimbo, et al., Appellants,
v.
WARNER-LAMBERT COMPANY, et al., Respondents; et al., Defendants.
Supreme Court, Appellate Division,
Second Department.
March 7, 1983.

Page 65

Schekter, Aber, Rishty, Goldstein & Schechter, P.C., New York City, for appellant James Curry.

Witchel & Abraham, P.C., New York City (Milton M. Witchel and Neil Goldstein, New York City, of counsel), for appellant John Bimbo.

McHugh, Leonard & O'Conor, New York City, for respondents Warner-Lambert and American Chicle.

Arkin & Arisohn, P.C., New York City, for respondents Arthur Kraft and Ed Harris.

Andrew M. Lawler, Jr., New York City (James M. Leonard, Denis C. McMahon, Arthur T. Cambouris and Dennis E. Milton, New York City, of counsel), for respondents James O'Mahoney and John O'Rourke.

Before GULOTTA, J.P., and WEINSTEIN, NIEHOFF and RUBIN, JJ.

GULOTTA, Justice Presiding.

The principal issue raised on this appeal is whether the underlying causes of action against the plaintiffs' employer and certain of their coemployees are barred by the "finality" and "exclusivity" provisions of the Workers' Compensation Law (Workers' Compensation Law, §§ 11, 23 and 29). In our view, this question must be answered in the affirmative and the complaints dismissed as against respondents.

John Bimbo and James Curry (hereinafter plaintiffs), are two of a number of employees of defendant Warner-Lambert Company who, on November 21, 1976, were seriously injured in a fire and explosion which occurred at a manufacturing plant of the American Chicle division of that company located in Long Island City. Plaintiffs, as well as other affected employees and/or their personal representatives, thereafter commenced a series of personal injury and wrongful death actions against the various codefendants, including their employer, Warner-Lambert, the American Chicle Company, the officers and employees of Warner-Lambert who were responsible for the operation of the plant in question, and the companies responsible for producing and supplying the chemical substances and equipment which were alleged to have caused the explosion.

In the order appealed from, Special Term dismissed the complaints as against the American Chicle Company, finding that it had ceased to exist as a separate entity in 1962, after merging with and selling all of its assets to the Warner-Lambert Pharmaceutical Company (now the Warner-Lambert Company). In addition, Special Term dismissed the complaints as against the remaining defendant-respondents on the ground, inter alia, that the actions were barred by the acceptance and retention of workers' compensation benefits. At the time of the commencement of these actions in October of 1979, Bimbo and Curry had already been receiving workers' compensation benefits from their employer's insurance carrier for a period of nearly three years, and had thus far collected in excess of $110,000 and $43,000, respectively, in benefits.

We affirm.

As a quid pro quo for the swift and secure payment of benefits for injuries sustained in the course of their employment, without regard to fault (see Workers' Compensation Law, § 10), the Workers' Compensation Law general requires employees

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to forfeit their right to maintain a common-law tort action against their employers and coemployees for work-related injuries (see Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 159, 432 N.Y.S.2d 879, 412 N.E.2d 934; O'Rourke v. Long, 41 N.Y.2d 219, 222, 391 N.Y.S.2d 553, 359 N.E.2d 1347). Thus, section 11 of the Workers' Compensation Law specifically provides: "The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever" to the injured employee or his personal representative on account of such injury or death, except in those cases in which the employer has failed to secure workers' compensation (emphasis supplied). In addition, section 29 (subd. 6) of the Workers' Compensation Law provides: "The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ " (emphasis supplied).

Notwithstanding these statutory provisions, however, case law has developed a limited exception to the exclusivity of workers' compensation benefits as the sole remedy for an employee injured in the course of his employment, e.g., where the injury is the product of "an intentional or deliberate act by the employer directed at causing harm to [that] particular employee " (Mylroie 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). Accordingly, covered employees have consistently been permitted to maintain common law causes of actions for intentional tort against their employers and coemployees where their injuries have been the product of deliberate acts undertaken to injure that particular employee or to have him injured (see, e.g., Lavin v. Goldberg Bldg. Material Corp., 274 App.Div. 690, 87 N.Y.S.2d 90, mot. for lv. to app. den. 275 App.Div. 865, 89 N.Y.S.2d 523; DeCoigne v. Ludlum Steel Co., 251 App.Div. 662, 297 N.Y.S. 636; LePochat v. Pendleton, 187 Misc. 296, 63 N.Y.S.2d 313, affd. 271 App.Div. 964, 68 N.Y.S.2d 594), and it is within this limited exception that the plaintiffs have attempted to bring themselves by alleging, inter alia, that the defendant-respondents "consciously, willfully, knowingly and intentionally ignored the hazards they created or caused to be created in and by the Freshen-Up manufacturing process [i.e., that aspect of the operation in which the explosion occurred], and/or * * * maintained same * * * notwithstanding their knowledge that physical harm would or was likely to be inflicted upon [these] plaintiff[s] and others".

The plaintiffs cannot prevail. Viewed most favorably to the plaintiffs, their allegation to the effect that defendant-respondents had "intentionally ignored" the known hazard of an explosion in connection with the design and operation of the Freshen-Up manufacturing process cannot be deemed to satisfy the case-law requirement of "specific acts" directed at causing harm to "particular employees" necessary to bring this case within the "intentional injury" exception, and is tantamount to an allegation of gross negligence, or perhaps, even reckless conduct on the part of defendant-respondents leading to an industrial accident....

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27 practice notes
  • Bass v. World Wrestling Federation Entertainment, No. 99-CV-5688 (NGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 14, 2001
    ...for an intentional tort committed, instigated or authorized by the employee's employer."); Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64, 66 (N.Y.App. Div.1983) (holding the allegation that defendants "consciously, willfully, knowingly and intentionally ignored......
  • Hill v. Delta Intern. Machinery Corp., No. 05 CIV 3812SAS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 19, 2005
    ...not excepted from the `exclusive remedy' provision of the Workers' Compensation law"). See also Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64, 66 (2d Dep't 1983) (holding that intentionally ignoring a known risk of explosion is not a "specific act directed at c......
  • Acevedo v. Consolidated Edison Co. of New York, Inc.
    • United States
    • New York Supreme Court
    • June 28, 1991
    ...where the injury results from an intentional tort perpetrated by or at the direction of the employer. (Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64; Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; Estupinan v. Cleanerama Drive-In Cleaners, Inc., 38 A.D.2d 353, 329 N......
  • Liss v. Trans Auto Systems, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • August 1, 1985
    ...392 N.Y.S.2d 502; Matter of Comr. of Taxation & Fin. v. Fisher, 89 A.D.2d 664, 453 N.Y.S.2d 103; Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64; Matter of Hartham v. Geo A. Fuller Co., et al., 89 A.D.2d 720, 453 N.Y.S.2d 843; Matter of Young v. Western Electric Co., 8......
  • Request a trial to view additional results
27 cases
  • Bass v. World Wrestling Federation Entertainment, No. 99-CV-5688 (NGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 14, 2001
    ...to recover for an intentional tort committed, instigated or authorized by the employee's employer."); Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64, 66 (N.Y.App. Div.1983) (holding the allegation that defendants "consciously, willfully, knowingly and intentionally ignore......
  • Hill v. Delta Intern. Machinery Corp., No. 05 CIV 3812SAS.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 19, 2005
    ..."is not excepted from the `exclusive remedy' provision of the Workers' Compensation law"). See also Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64, 66 (2d Dep't 1983) (holding that intentionally ignoring a known risk of explosion is not a "specific act directed at causing......
  • Acevedo v. Consolidated Edison Co. of New York, Inc.
    • United States
    • New York Supreme Court
    • June 28, 1991
    ...where the injury results from an intentional tort perpetrated by or at the direction of the employer. (Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64; Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; Estupinan v. Cleanerama Drive-In Cleaners, Inc., 38 A.D.2d 353, 329 N......
  • Liss v. Trans Auto Systems, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • August 1, 1985
    ...942, 392 N.Y.S.2d 502; Matter of Comr. of Taxation & Fin. v. Fisher, 89 A.D.2d 664, 453 N.Y.S.2d 103; Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 460 N.Y.S.2d 64; Matter of Hartham v. Geo A. Fuller Co., et al., 89 A.D.2d 720, 453 N.Y.S.2d 843; Matter of Young v. Western Electric Co., ......
  • Request a trial to view additional results

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