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Siegel v. Garibaldi

Supreme Court, Ulster County

September 13, 2016

Eric S. Siegel, Plaintiff,
v.
Charles A. Garibaldi, Defendant.

          John G. Rusk, Esq. Counsel for Plaintiff Rusk, Wadlin, Heppner & Martuscello, LLP Sheila S. Rosenrauch, Esq. Counsel for Defendant, movant Alan B. Brill, P.C.

          Lisa M. Fisher, J.

         This matter involves a pedestrian knockdown car accident occurring on February 11, 2014 at approximately 10:45 PM, wherein Plaintiff-pedestrian sustained personal injuries when Defendant-motorist rolled through a stop sign, while on his cell phone, and collided into Plaintiff who was in the crosswalk. Now, Defendant moves for summary judgment arguing Plaintiff is unable to maintain an action against Defendant pursuant to Workers' Compensation Law § 29 (6), which bars Plaintiff's action as workers' compensation is the exclusive remedy. For the reasons that follow, Defendant's motion is granted and the Complaint is dismissed.

         The facts are undisputed. Both Plaintiff and Defendant were employees of the Culinary Institute of America and the subject accident occurred on the campus' premises. Defendant had finished his tasks for the night, entered his vehicle parked on campus, and proceeded along Campus Drive to reach the campus entrance to 9W to go home. The entrance was approximately a quarter of a mile away from where he parked his vehicle. Defendant admitted to rolling through the stop sign and collided with Plaintiff in the crosswalk, who had just started his car in the parking lot and was crossing the street to return to work to clock out. After the subject accident, both Plaintiff and Defendant went to campus security, informed them what happened, and campus security called for police and an ambulance.

         While the facts are undisputed, both parties disagree over the applicable law. Defendant contends that the Workers' Compensation Law applies to the ingress and egress of employees. Even though Defendant was off the clock, Defendant contends he was still on his employer's premises leaving the property and in the process of egress thus the Workers' Compensation Law bars this action. Whereas Plaintiff contends that Defendant had completed his work-related tasks and was not within the scope of his employment when the subject accident occurred. Plaintiff further contends Defendant was on a road open to the public and not furthering his employer's interests as he had left work.

         To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851');">64 N.Y.2d 851 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557');">49 N.Y.2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 A.D.2d 700 [3d Dept 2003]; Balnys v Town of New Baltimore, 160 A.D.2d 1136, 1136 [3d Dept 1990] [noting the movant must come "forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars."].) Such "burden may not be met by pointing to gaps in plaintiff's proof" (DiBartolomeo v St. Peter's Hosp. of City of Albany, 73 A.D.3d 1326');">73 A.D.3d 1326 [3d Dept 2010]; accord Dow v Schenectady County Dept. of Social Servs., 46 A.D.3d 1084, 1084 [3d Dept 2007]).

         Remedies of employees and subrogation are governed by Workers' Compensation Law § 29, which provides under subdivision (6) "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee... when such employee is injured or killed by the negligence or wrong of another in the same employ...." (See Macchirole v Giamboi, 97 N.Y.2d 147, 150 [2001] ["Workers' Compensation qualifies as an exclusive remedy when both the plaintiff and the defendant are acting within the scope of their employment, as coemployees, at the time of injury"].) The Court of Appeals articulated the purpose of the Workers' Compensation Law as being "designed to insure that an employee injured in the course of employment will be made whole and to protect a coemployee who, acting within the scope of his employment caused the injury" (Maines v Cronomer Valley Fire Dept., Inc., 50 N.Y.2d 535, 544 [1980]). Thus, "[t]he Workers' Compensation Law... offers the only remedy for injuries caused by the coemployee's negligence" (Tikhonova v Ford Motor Co., 4 N.Y.3d 621, 624 [2005] [noting such conclusion "flowed directly" from the statute language of Workers' Compensation Law § 29 [6]]; see Workers' Compensation Law § 29 [6]; see also Workers' Compensation Law § 11).

         However, the Court of Appeals also noted that the Workers' Compensation Law does "not protect[] the coemployee, even though the injured employee has accepted compensation benefits, while the coemployee was not acting within the scope of his employment at the time he inflicted the injury" (Maines, 50 N.Y.2d at 543-444 ["But the words 'in the same employ' as used in the Workers' Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer"]).

         While, generally, traveling to and from work is not deemed to be within the scope of employment (Jacobsen v Amedio, 218 A.D.2d 872, 873 [3d Dept 1995], citing Matter of Fine v S.M.C. Microsystems Corp., 75 N.Y.2d 912');">75 N.Y.2d 912 [1990]), as an employee approaches the site of his employment, "there develops 'a gray area' where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation" (Husted v Seneca Steel Serv., Inc., 41 N.Y.2d 140, 144 [1976]; Patti v Republic Aviation Corp., 20 A.D.2d 939');">20 A.D.2d 939 [3d Dept 1964], appeal den. 14 N.Y.2d 488');">14 N.Y.2d 488 [1964]). Analysis by New York courts has narrowed the test to "whether there is a relationship existing between the accident and the employment as to bring the former within the range of the latter" (Husted, 41 N.Y.2d at 144).

         As a result, it is settled that "[w]hile on the employer's premises, going to or coming from work is generally considered an incident of employment" (Matter of Arana v Hillside Manor-Nursing Center, 251 A.D.2d 715, 716 [3d Dept 1998], quoting Sicktish v Vulcan Indus. of Buffalo, 33 A.D.2d 975, 976 [4th Dept 1970]; see Evans v J.W. Mays, Inc., 25 A.D.2d 597, 597 [3d Dept 1966], lv denied 17 N.Y.2d 423');">17 N.Y.2d 423 [1966]; see also Matter of Mercado v Schenectady City School Dist., 24 A.D.3d 846, 846 [3d Dept 2005]). Here, Defendant was leaving work and less than a quarter of a mile from where he has parked. He was on campus and traveling on Campus Drive; the accident very clearly occurred on the employer's premises. Following the subject accident, rather than calling police to the spot of the accident, both Plaintiff and Defendant went to campus security. Both evinced an understanding that the accident was under the guise of the employment and handled by the campus. Defendant has satisfied its prima facie entitlement to summary judgment.

         Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination" (Swartout v Consolidated Rail Corp., 294 A.D.2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011]; Greco v Boyce, 262 A.D.2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."]).

         Here, Plaintiff does not raise a triable issue of fact or credibility. Plaintiff cites to Groak v Miller (48 A.D.2d 539 [3d Dept 1975]), which declined application of the Workers' Compensation Law as a bar to the plaintiff's action. In Groak, both the plaintiff and defendant were employees of the New York State Department of Transportation. The plaintiff clocked out, entered her car, and exited the parking lot onto a circular road which surrounds the State Campus complex of office buildings where both parties worked. Approximately five minutes and one mile from her place of employment, while still on the circular road around the State Campus, the defendant rear ended the plaintiff's vehicle causing personal injuries.

         In rejecting the application of the Workers' Compensation Law, the Appellate Division, Third Department, did not find the motor vehicle accident was "within the precincts of their employment" and specifically noted both parties were not in the scope of employment, particularly because "[t]he roadway where the accident occurred cannot be considered within the premises of the employment" (Groak, 48 A.D.2d at 541 [noting the accident occurred on a public roadway, and not on the employer's property]). Unlike Groak, Plaintiff was still on the clock and on his employer's premises. The subject accident occurred less than a quarter mile from where Defendant left the parking lot, and while on a road shared by the public, still a campus road.

         While Defendant was not acting in furtherance of his employer's interests, he was still in the process of egress from the property and still on his employer's property-unlike in Groak. This distinction is supported by the Court of Appeal's decision in Husted (41 N.Y.2d at 140), and the thorough analysis of several New York cases used in that decision. The plaintiff in Husted had made a left turn across traffic and towards his employer's parking lot entrance when he was struck on the right side by an oncoming vehicle. Both the Third Department and Court of Appeals agreed that, even though the plaintiff's vehicle was not on his employer's premises and he had ...


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