Walstein v. Blank
| Decision Date | 26 June 1962 |
| Citation | 231 N.Y.S.2d 733,35 Misc.2d 1015 |
| Parties | Helen WALSTEIN v. Erna BLANK and Roger Croudy. |
| Court | New York Supreme Court |
Hyman J. Greenberg, Jamaica, for plaintiff.
Joseph M. Soviero, New York City, for defendants.
Defendant Blank moves to dismiss the complaint pursuant to Subdivision 4 of Rule 106 of the Rules of Civil Practice.
Plaintiff's complaint alleges that at the time of the assault upon her by the co-defendant Roger Croudy, a co-employee of the defendant Erna Blank, she was an employee of the latter defendant. It appears that the plaintiff was injured while in the performance of her duties as barmaid at the time of the alleged assault, and that the injuries arose out of and in the course of her employment. There is no allegation in her complaint to the effect that the moving defendant failed to secure compensation insurance to cover her as required by the Workmen's Compensation Law. In the absence of such allegation the complaint fails to state facts sufficient to constitute a cause of action. (Nulle v. Hardman Peck & Co., 185 App .Div. 351, 173 N.Y.S. 236; Culhane v. Economical Garage, 195 App.Div . 108, 186 N.Y.S. 454)
The plaintiff's sole remedy rests on the provisions of the Workmen's Compensation Law, since it appears on the face of the complaint that the plaintiff was injured in the course of her employment by the moving defendant. (Wasserman v. Josephson, 274 App.Div. 919, 61 N.Y.S.2d 204) Moreover, the complaint fails to allege that the moving defendant, plaintiff's employer, instigated or directed the assault. Therefore, the complaint is insufficient for that further reason. (Whittington v. Moore McCormick Lines Inc., 2 Cir., 196 F.2d 295; Champlin v. Chemical Corn Exchange Bank, Sup., 158 N.Y.S.2d 138)
From the allegations of the complaint it unmistakably appears that she sustained injuries as a result of an assault by a fellow worker in the course of her employment, and that the injuries were accidental within the meaning of the Compensation Law so far as the moving defendant is concerned. (Mazzaredo v. Levine, 274 App.Div. 122, 80 N.Y.S.2d 237)
Accordingly, the motion herein is granted.
Settle order.
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Werner v. State, 57226
...919, affd. 10 N.Y.2d 718, 219 N.Y.S.2d 266, 176 N.E.2d 835; Artonio v. Hirsch, 3 A.D.2d 939, 163 N.Y.S.2d 489; Walstein v. Blank, 35 Misc.2d 1015, 231 N.Y.S.2d 733). To the contrary, however, claimant applied for compensation benefits and received them on the basis of a finding of the board......
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