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Tomushunas v. Designcrete of America, LLC

Supreme Court of New York, Fourth Department

January 3, 2014

Deborah Tomushunas, PLAINTIFF-APPELLANT,
v.
Designcrete of America, LLC AND ROBERT G. BYRNES, INDIVDUALLY AND IN HIS CAPACITY AS OWNER AND PRESIDENT OF DESIGNCRETE OF AMERICA, LLC, DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered September 7, 2012. The order, inter alia, granted the motion of defendants for summary judgment dismissing the complaint.

O'HARA, O'CONNELL & CIOTOLI, FAYETTEVILLE (STEPHEN CIOTOLI OF COUNSEL), FOR PLAINTIFF-APPELLANT.

KIRWAN LAW FIRM, P.C., EAST SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action against her former employer and its principal, alleging causes of action for assault, intentional infliction of emotional distress and prima facie tort. Supreme Court properly granted defendants' motion seeking summary judgment dismissing the complaint on the ground that the action is barred as the result of plaintiff's receipt of workers' compensation benefits. As plaintiff concedes, before commencing this action, she received $40, 000 in workers' compensation benefits for missing work due to illnesses and injuries resulting from the same misconduct by her employer as alleged in the complaint. "[B]y accepting an award of workers' compensation benefits, plaintiff forfeited the right to maintain an action at law on the theory of intentional tort" (Mylroie v GAF Corp., 55 N.Y.2d 893, 894; see Cunningham v State of New York, 60 N.Y.2d 248, 251-252; Martin v Casagrande, 159 A.D.2d 26, 29-30, lv dismissed 76 N.Y.2d 1018). Contrary to plaintiff's contention, it is of no consequence that the award of benefits resulted from the settlement of her claim (see generally Hynes v Start El., 2 A.D.3d 178, 181).


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