The following papers were read on the Defendant State of New York's motion for
an order dismissing the Claim pursuant to CPLR § 3211 (a):
1. Notice of Motion to Dismiss filed October 11, 2005;
2. Affidavit of Michael C. Rizzo, AAG in Support of Motion to Dismiss, with
annexed exhibits, sworn to October 7, 2005 and Memorandum of Law;
3. Responding Affidavit of Michael T. DiPrima, Esq., with annexed exhibits,
filed January 19, 2006;
4. Reply Affidavit of Michael C. Rizzo, AAG filed January 24, 2006.
Filed Papers: Claim filed July 12, 2005.
This Claim arose on January 24, 2004, at approximately 9:50 p.m. when Claimant,
Christopher Goebert, a New York State Trooper, was on-duty and traveling
northbound on State Route 14 in the Town of Horseheads, County of Chemung, in
his State Police vehicle, a 2003 Ford Crown Victoria. Claimant observed a
vehicle traveling southbound with a headlight out so he turned his vehicle
around and began following the suspect vehicle on State Route 14 southbound.
Claimant continued to follow the suspect vehicle by making a left turn onto
Wygant Road when his vehicle was struck head-on by a third vehicle. Claimant
alleges that as a result of the collision he struck his head on a police radio
which was mounted on the interior of the windshield near the rearview mirror
resulting in, among other things, a fractured right orbital with complete loss
of vision in the right eye and a fracture of the C-7 vertebrae.
Claimant served a Notice of Intention upon the Office of the Attorney General
on March 24, 2004. Thereafter, Claimant filed a Claim with the Clerk of the
Court on July 12, 2005 and served the Office of the Attorney General on July 14,
The Claim alleges a General Municipal
Law § 205-e cause of action based upon a violation of Labor Law §
27-a. By way of this motion and in lieu of an answer, the State of New York
(hereinafter "State") alleges that the Claim fails to state a cause of action
since Claimant's sole remedy for his injuries sustained in the workplace are
Workers' Compensation benefits and that this Court therefore lacks subject
The Court notes that its function on a motion to dismiss is to "[a]ccept the
facts as alleged in the complaint as true, accord [Claimant] the benefit of
every possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory [citations omitted]" (Leon v
, 84 NY2d 83, 87-88 ). Here, even accepting Claimant's
assertions as true, the Court finds that no cause of action is stated. All New
York State employees are covered by the Workers' Compensation Law (Workers'
Compensation Law § 10). Section 11 of the Workers' Compensation Law
provides, in pertinent part, that the liability of an employer under the
Workers' Compensation Law "[s]hall 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...." As such, if a State employee is injured during the
course of his/her employment, the sole and exclusive remedy available to that
employee is Workers' Compensation benefits (Workers' Compensation Law § 11;
Gonzales v Armac Indus.
, 81 NY2d 1, 8
Furthermore, the State's waiver of
sovereign immunity in Court of Claims Act § 8 contains an explicit
reservation of the exclusivity of the Workers' Compensation Law by providing
that nothing contained in Court of Claims Act § 8 "[s]hall be construed to
affect, alter or repeal any provision of the [Workers'] Compensation Law."
Although neither party makes an affirmative statement that Claimant has received
Workers' Compensation benefits, Claimant does not argue to the contrary. In any
event, it is not the receipt of benefits that triggers the exclusivity rule, but
rather "[t]he right to compensation or benefits" (Workers' Compensation Law
§ 29 ; O'Dette v Parton
, 190 AD2d 1074, 1075 ). Claimant
has not demonstrated that he is exempt from the exclusivity of the Workers'
Compensation Law (O'Rourke v Long
, 41 NY2d 219 ). The cases cited
by Claimant involved New York City employees who are not entitled to Workers'
Compensation benefits and, as such, the Court finds those cases distinguishable
from the facts presented here.
Finally, Claimant asserts that the State's motion is premature due to the need
for discovery. However, Claimant has failed to demonstrate "[t]hat facts
essential to justify opposition may exist but cannot then be stated" (CPLR
§ 3211 [d]; Herzog v Town of Thompson, 216 AD2d 801, 803 ;
Peterson v Spartan Indus., 33 NY2d 463, 467 ).
For the reasons stated above, it is ORDERED that the State's motion to dismiss,
Motion No. M-70808, is GRANTED and Claim No. 111129 is DISMISSED.