New York State Court of Claims

New York State Court of Claims

PALMER v. THE STATE OF NEW YORK, #2004-030-513, Claim No. 105982, Motion No. M-68031


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 5, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Defendant's motion

for summary judgment:

1,2 Notice of Motion; Affirmation by Dewey Lee, Assistant Attorney General, dated February 10, 2004, and attached exhibits

3,4 Affidavit by Harold Palmer, Claimant, sworn to February 11, 2004; Affirmation by Jerold S. Slate, Attorney for Claimant, dated February 12, 2004

5,6,7,8 Filed Papers: Claim, Answer, Amended Claim, Amended Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Harold Palmer, the Claimant herein, alleges in Claim Number 105982 that he suffered personal injury for which the Defendant should be held liable as a result of a pattern of harassing and abusive behavior by a fellow employee with the knowledge and participation of Claimant's supervisor at a State psychiatric facility. The claim was interpreted as one stating a cause of action based upon general negligence principles and/or negligent supervision theory in a prior Decision denying in part and granting in part a motion to dismiss. [See Palmer v State of New York, Claim No. 105982, Motion No. M-65401 (Scuccimarra, J., August 26, 2002)].

Defendant now moves for summary judgment, based upon the Claimant's disclosure that he has received a workers' compensation award based upon the same set of facts as those alleged in this claim and continues to receive workers' compensation benefits. Although it appears that Claimant's initial application for workers' compensation benefits might have been denied, he received benefits pursuant to a subsequent decision. [See Exhibit 2, Affirmation by Dewey Lee, Assistant Attorney General].

Indeed, in the Affidavit submitted by Claimant in response to this motion he indicates that he has " . . . received a workers (sic) compensation award and . . . [is] collecting workers (sic) compensation benefits based upon the same facts and circumstances as my claim in the above-entitled action." [Affidavit by Harold Palmer,¶ 3]. He further indicates that it is his understanding that because he had accepted workers' compensation benefits based upon the same facts asserted in the present claim, he may not maintain the claim for the same relief in the Court of Claims. He does not oppose dismissal of the claim if that is the case. [Id, ¶ 4].

Counsel for Claimant essentially reiterates his client's position.


Workers' Compensation
Workers' Compensation Law §11 indicates that the remedy set forth in the article is an exclusive one, barring maintaining an action in the courts for money damages unless the " . . . employer fails to secure the payment of compensation for his . . . injured employees . . ." It is well settled that a Claimant "who applies for, is awarded and accepts workers' compensation . . . benefits is barred by the exclusive remedy and finality provisions of the Workers' Compensation Law from maintaining . . ." an action against his employer. Werner v State of New York, 53 NY2d 346, 348-349 (1981); See also Cunningham v State of New York, 60 NY2d 248 (1983); Reno v Westchester County, 289 AD2d 216 (2d Dept 2001); Mera v Adelphi Mfg. Co., Inc., 160 AD2d 781 (2d Dept 1990); Orzechowski v Warner-Lambert Company, 92 AD2d 110 (2d Dept 1983).
Summary Judgment

Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). While it is not the best practice, the use of an attorney's affirmation appending pertinent deposition testimony or documentary evidence and a verified pleading reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[1] As an initial matter the Court will treat the motion as adequately supported, given the concurrence of the Claimant in his sworn affidavit concerning the fact of his receipt of workers' compensation benefits.

Defendant has established without contradiction that the Claimant is receiving workers' compensation benefits for the same injury alleged in the Claim. Based upon the exclusivity and finality provisions of the Workers' Compensation Law, and the case law decided thereunder, the claim here cannot be maintained. The Court is satisfied that Defendant is entitled to judgment as a matter of law, as there are no triable issues of fact presented. Accordingly, Defendant's motion for summary judgment and for dismissal of the within claim is granted and Claim Number 105982 is dismissed in its entirety.

March 5, 2004
White Plains, New York

Judge of the Court of Claims

[1]"A fair reading of the attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted)."