Eric S. Siegel, Plaintiff,
Charles A. Garibaldi, Defendant.
G. Rusk, Esq. Counsel for Plaintiff Rusk, Wadlin, Heppner
& Martuscello, LLP Sheila S. Rosenrauch, Esq. Counsel for
Defendant, movant Alan B. Brill, P.C.
M. Fisher, J.
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
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.
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
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 ;
Zuckerman v City of New York, 49 N.Y.2d 557');">49 N.Y.2d 557 ;
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]).
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  ["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 ). 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
 [noting such conclusion "flowed directly"
from the statute language of Workers' Compensation Law
§ 29 ]; see Workers' Compensation Law
§ 29 ; see also Workers' Compensation
Law § 11).
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
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 ), 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 ; 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 ). 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).
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 ;
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.
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 ; 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."]).
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.
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.
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 ...