Pollock v. City of New York

• Decision Date: 19 December 1988
• Citation: 536 N.Y.S.2d 103,145 A.D.2d 550
• Parties: Stephanie POLLOCK, etc., Respondent, v. The CITY OF NEW YORK, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 103

536 N.Y.S.2d 103

145 A.D.2d 550

Stephanie POLLOCK, etc., Respondent, v. The CITY OF NEW YORK, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Dec. 19, 1988.

Peter L. Zimroth, Corp. Counsel, New York City (Kristin M. Helmers and Fay S. Ng, of counsel), for appellants.

Polstein, Ferrara & Campriello, New York City (Robert Polstein and Austin V. Campriello, of counsel), for respondent.

Before LAWRENCE, J.P., and RUBIN, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death, the defendants appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 29, 1987, which denied their motion to dismiss the complaint for failure to state a cause of action, or alternatively, for summary judgment.

ORDERED that the order is modified, on the law, by deleting the provision thereof which denied that branch of the defendants' motion which was for summary judgment dismissing the complaint, and substituting therefor a provision granting that branch of the motion; as so modified the order is affirmed, without costs or disbursements.

The plaintiff's decedent, a physician and employee of Kings County Hospital Center (hereinafter KCHC), was shot to death while on duty at the hospital premises by a former patient who was dissatisfied with surgical treatment he had received there.

Workers' Compensation Law § 11 provides the exclusive remedy for employees killed or injured in the course of their employment. However, an exception to the exclusivity of that remedy occurs where the employee's injuries arise from an intentional act of the employer intended to harm that particular employee (see, Crespi v. Ihrig, 99 A.D.2d 717, 472 N.Y.S.2d 324, affd. 63 N.Y.2d 716, 480 N.Y.S.2d 205, 469 N.E.2d 526; Ferrara v. American ACMI, 122 A.D.2d 930, 931, 505 N.Y.S.2d 964). The complaint alleges that the defendant New York City Health and Hospitals Corporation (hereinafter HHC) committed an intentional tort against the decedent, leading to his death.

In Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20-21, 505 N.Y.S.2d 831, 496 N.E.2d 851, the primary jurisdiction of the Workers' Compensation Board in the determination of the availability of the Workers' Compensation remedy was set forth as follows:

"In O'Rourke v. Long (41 NY2d 219, 228 supra), we held that 'where the availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions'. The Workers' Compensation Board thus has primary jurisdiction over the issue of the availability of coverage (Botwinick v. Ogden, 59 NY2d 909, 911 Peckham v. Peckham Materials Corp., 102 AD2d 884 ), and a plaintiff has no choice but to litigate this issue before the Board (Cunningham v. State of New York, 60 NY2d 248, 252 McMillan v. Notre Dame Residence Club, 33 Misc 2d 948, 951 ). If a plaintiff fails to do so, the court should not express an opinion as to the availability of compensation but remit the matter to the Board (O'Rourke v Long, supra; Gyory v Radgowski, 89 AD2d 867, 869 ). The Board must be given an opportunity to find plaintiff's injuries the result of a compensable accident. The compensation claim is a jurisdictional predicate to the civil action (O'Rourke v. Long, supra, at p 226 McMillan v Notre Dame Residence Club, supra, at p 951 )".

Thus, in this case the proper course of action would have been for the court to remit this issue to the Workers' Compensation Board (hereinafter the Board) for a determination of whether or not the incident which resulted in the decedent's death was a compensable accident, thereby invoking the exclusivity of remedy provision of the Workers' Compensation Law. Although the Supreme Court did not address this issue in its decision denying dismissal of the complaint, it has been conceded on appeal, both in the briefs and on oral argument, that subsequent to the making of the order appealed from, the plaintiff was awarded and did accept Workers' Compensation benefits.

It is well settled that a determination of the Board that a claimant's injuries are accidental is binding on the claimant despite the pendency of a civil action, even if the claimant did not apply for or accept the benefits awarded. Further, such a determination precludes an action against the employer for intentional tort (see, Cunningham v. State of New York, 60 N.Y.2d 248, 252-253, 469 N.Y.S.2d 588, 457 N.E.2d 693). In this case the Board has determined that the decedent's death was accidental and not intentional. Therefore, the award of workers' compensation to the plaintiff constitutes a complete defense to the intentional tort claim against HHC and that branch of its motion which was for summary judgment dismissing the complaint as...