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
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'
IT IS ORDERED that motion no.
M-64169 be granted and claim no. 104509 be
and IT IS FURTHER ORDERED that
cross-motion no CM-65166 be denied.