Even if plaintiff's injury was caused in some measure by the negligence of his co-worker, the Workers' Compensation Law defense is not applicable to shield defendant Bell Trucking and Bell's employee defendant Jenkins from liability. Bell was not plaintiff's employer and plaintiff does not seek to hold Bell vicariously accountable for the conduct of plaintiff's co-worker, but rather alleges that his injuries resulted from Bell's and Jenkins's affirmative negligence ( see Chiriboga v. Ebrahimoff, 281 A.D.2d 353; see also Kobre v. United Jewish Appeal-Federation of Jewish Philanthropies of New York, Inc., 288 A.D.2d 158; cf. Rauch v. Jones, 4 N.Y.2d 592). Inasmuch as the complaint is so premised, the court properly permitted plaintiffs to amend their Bill of Particulars to assert violations of Vehicle and Traffic Law § 388(1) ( see Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 562; Christiansen v. Silver Lake Contr. Corp., 188 A.D.2d 507, 508). There remain issues of fact as to whether defendants' conduct was a proximate cause of plaintiff's injury.
M-1936 — Nunez v. Jenkins
Motion seeking stay and for other related relief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.