Judgment, Supreme Court, New York County (Marilyn Shafer, J.), entered June 1, 2009, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered February 11, 2009, which granted defendants' motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Andrias, Sweeny, Nardelli, Renwick, JJ.
Plaintiff commenced this action seeking damages for injuries sustained when he was doing cement work on the basement floor of a building owned by defendant West Equities and managed by defendant Garfield Development. Defendant Alan Garfield was the president and sole shareholder of Garfield Development, as well as the sole member of West Equities. Supreme Court dismissed the action as barred by Workers' Compensation Law.
On appeal, plaintiff essentially argues that Supreme Court erred in granting summary judgment dismissal because there is a factual dispute as to which entity (the owner or the managing agent) employed the super when the latter hired plaintiff, presumably on behalf of his employer. The employer issue is relevant to Workers' Compensation Law § 11, to the extent it precludes a plaintiff from bringing an action against his or her employer for job-related injuries. This purported dispute, however, is irrelevant in this case because the action is barred under the exclusivity provision for co-employees of Workers Compensation Law § 29(6), which makes compensation the exclusive remedy of an employee injured by the negligence or wrong of another in the same employ.
Regardless of whether the super was employed by the owner or the managing agent, the undisputed fact remains that Alan Garfield is a co-employee with the super. Thus, regardless of any duty defendants had to maintain the premises in a safe condition, the action is barred by the exclusivity provision for co-employees in Workers' Compensation Law § 29(6) (Heritage v Van Patten, 59 NY2d 1017 ; Negron v Rodriquez & Rodriquez Stor. & Warehouse, Inc., 23 AD3d 159 ; Medrano v Pritchard Indus., 298 AD2d 271 ; Concepcion v Diamond, 224 AD2d 189 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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