New York State Court of Claims

New York State Court of Claims

Weinreb v. EMEL A. ENNIS, THE STATE OF NEW YORK, NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORIC PRESERVATION, and LONG ISLAND STATE PARK COMMISSION a/k/a JONES BEACH STATE PARK, #2002-016-065, Claim No. 104509, Motion Nos. M-64169, CM- 65166


Synopsis


Claim was dismissed on the grounds that claimant's sole remedy was workers' compensation benefits.

Case Information

UID:
2002-016-065
Claimant(s):
AIMEE WEINREB, an infant over the age of fourteen, by her mother and legal guardian, MAUREEN HANDLEY, and MAUREEN HANDLEY, individually
Claimant short name:
Weinreb
Footnote (claimant name) :

Defendant(s):
EMEL A. ENNIS, THE STATE OF NEW YORK, NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORIC PRESERVATION, and LONG ISLAND STATE PARK COMMISSION a/k/a JONES BEACH STATE PARK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104509
Motion number(s):
M-64169
Cross-motion number(s):
CM- 65166
Judge:
Alan C. Marin
Claimant's attorney:
Dominick Yezzo, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq., AAG
Third-party defendant's attorney:

Signature date:
July 17, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion for summary judgment dismissing the claim of Aimee Weinreb on the ground that it is barred by the Workers' Compensation Law.[1] Claimant cross-moves for permission to amend the claim to "seek punitive damages from her employer for their egregious conduct . . ." In the underlying claim, it is asserted Ms. Weinreb, then 16-years old, was injured while working at her summer job at Jones Beach. Specifically, it is alleged that while she was in a Vehicular User Fee ("VUF") booth, another seasonal employee drove a State truck into the booth, injuring Weinreb. According to claimant, the driver of the vehicle initially told police he fell asleep at the wheel, but then stated at his deposition that there was a problem with the accelerator and that he might have "blacked out."

Following the incident, Aimee Weinreb received workers' compensation benefits. See exhibit F to the October 1, 2001 affirmation of John M. Shields. Section 11 of the Workers' Compensation Law provides in relevant part that the liability of an employer under the Workers' Compensation Law "shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury . . ."

Claimant asserts that an exception to these general principles should be made in her case on several grounds. First, it is noted that "claimant was a seasonal employee . . .," but claimant cites no authority that this is grounds for an exception or otherwise elaborates. See ¶17 of the May 6, 2002 affirmation of Dominick Yezzo, Esq. (the "Yezzo Aff."). In any event, there is no distinction in the Workers' Compensation Law between seasonal and yearly employment. See, e.g., Gannon v New York State Dept. of Taxation and Finance, 275 AD2d 869, 713 NYS2d 576 (3d Dept 2000).

Claimant next argues that the facts of this case entitle her to the exception under workers' compensation for intentional tort. In Acevedo v Consolidated Edison Co. of New York, Inc., 189 AD2d 497, 500-501, 596 NYS2d 68, 70-71 (1st Dept 1993), lv dismissed 82 NY2d 748, 602 NYS2d 806 (1993) (citations omitted), it was held that "[t]o sufficiently plead an intentional tort that will neutralize the statute's exclusivity there must be alleged an intentional or deliberate act by the employer directed at causing harm to the particular employee . . . ‘In order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act. A mere knowledge and appreciation of a risk is not the same as the intent to cause injury . . .'"

In Acevedo, it was found that the alleged conduct of the employer – sending employees to clean up after an explosion without warnings or protective gear -- did not constitute behavior sufficient to warrant application of the intentional tort exception. In the instant case, claimant argues, e.g., that defendant knowingly placed claimant in a small wooden booth by a curve, that the supervisor of the driver who hit claimant should have known the driver was a risk as he had had a prior accident and that defendant knew the driver had worked until 9:00 p.m. the night before and went back to work at 7:00 a.m. the day of the accident. These allegations do not rise to the level of behavior comprehended by the intentional tort exception.

Finally, and without authority, claimant argues that "[t]he idea of criminal negligence can readily be another exception to the Workers' Compensation exclusivity rule." See ¶28 of the Yezzo Aff. In Bardere v Zafir, 102 AD2d 422, 424, 477 NYS2d 131,134 (1st Dept 1984), affd 63 NY2d 850, 482 NYS2d 261 (1984), it was held that the description of certain conduct as "‘criminal negligence' is merely the equivalent of an allegation of gross negligence or reckless conduct, which does not except if from the ‘exclusive remedy' provision of the Workers' Compensation Law."

For the foregoing reasons, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M-64169 be granted and claim no. 104509 be dismissed[3] and IT IS FURTHER ORDERED that cross-motion no CM-65166 be denied.



July 17, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Since the claim of Maureen Handley as an individual is derivative in nature, references herein will be to Aimee Weinreb in the singular, unless the context indicates otherwise.
  2. [2]The following were reviewed: defendant's "Notice of Motion" with affirmation in support and exhibits A-F; claimant's "Affirmation in Opposition and Cross-Motion to Amend Summons and Complaint" with exhibits A-F; and defendant's "Reply in Support of Motion to Dismiss." It should be noted that claimant's papers contain a request for oral argument and an opportunity to present a 5-minute film of the Jones Beach VUF booths. I find that such are not necessary.
  3. [3]It should be noted that to the extent Weinreb's claim names Emel A. Ennis as a defendant, this Court lacks jurisdiction over him as individuals may not be sued in the Court of Claims.