Santos v. Butkovich

• Decision Date: 18 March 2015
• Docket Number: 2013-07779
• Citation: 2015 N.Y. Slip Op. 02089,6 N.Y.S.3d 261,126 A.D.3d 845
• Parties: Alan DE LOS SANTOS, respondent, v. Nikola BUTKOVICH, et al., appellants.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 845

6 N.Y.S.3d 261

2015 N.Y. Slip Op. 02089

Alan DE LOS SANTOS, respondent

v.Nikola BUTKOVICH, et al., appellants.

2013-07779

Supreme Court, Appellate Division, Second Department, New York.

March 18, 2015.

Rosenblatt & McGarrity LLP, White Plains, N.Y. (Robert Rosenblatt of counsel), for appellants.

Dillon & Dillon, LLC, Mamaroneck, N.Y. (Alan E. Dillon of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), dated June 27, 2013, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant N.B. Painting and Decorating Corp.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant N.B. Painting and Decorating Corp. is granted.

“Workers' compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” (Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 [internal quotation marks omitted] ). “This precludes suits against an employer for injuries in the course of employment” (id. at 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 ; Cunningham v. State of New York, 60 N.Y.2d 248, 251, 469 N.Y.S.2d 588, 457 N.E.2d 693 ). “ [W]henever it appears or will appear from a plaintiff's pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff” (Murray v. City of New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560 ; see Villatoro v. Grand Blvd. Realty, Inc., 18 A.D.3d 647, 647, 795 N.Y.S.2d 637 ; Rainey v. Jefferson Vil. Condo No. 11 Assoc., 203 A.D.2d 544, 546, 611 N.Y.S.2d 207 ).

Here, in support of their motion for summary judgment, the defendants presented evidence that the plaintiff was an employee of the defendant N.B. Painting and Decorating Corp. (hereinafter N.B. Painting), who was injured in the course of his employment, and that N.B. Painting maintained a Workers' Compensation policy on the date of the accident. Accordingly, the defendants established prima facie that the exclusivity provisions of Workers' Compensation Law § 11 barred the plaintiff from seeking a recovery in tort against N.B. Painting (see Vitello v. Amboy Bus Co., 83 A.D.3d 932, 933–934, 921 N.Y.S.2d 159 ; Beaucejour v. General Linen Supply & Laundry Co., Inc., 39 A.D.3d 444, 444–445, 833 N.Y.S.2d 228 ; Villatoro v....