Santos v. Butkovich

JOHN M. LEVENTHAL

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.

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. Grand Blvd. Realty, Inc., 18 A.D.3d at 648, 795 N.Y.S.2d 637).

In opposition, the plaintiff failed to raise a triable issue of fact. “[A]ll employees of an employer are deemed covered by the employer's workers' compensation policy, regardless of whether an employee may have been working ‘off the books', where the employer has secured a policy of insurance coverage” (Baljit v. Suzy's Dept. Store, 211 A.D.2d 555, 555, 621 N.Y.S.2d 76; see Vargas v. Crown Container Co., Inc., 114 A.D.3d 762, 764, 980 N.Y.S.2d 500).

Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant N.B. Painting ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). In light of our determination, we need not reach the defendants' remaining contention.