Vaccaro and White, LLP, New York, NY (Adam D. White of
counsel), for appellant.
Theodore A. Stamas (Rivkin Radler LLP, Uniondale, NY [Cheryl
F. Korman, Merril Biscone, and Stuart M. Bodoff], of
counsel), for respondent.
C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from a judgment of the Supreme Court, Kings
County (Baily-Schiffman, J.), entered April 28, 2015, which,
upon an order of the same court dated April 23, 2015,
granting the motion of the defendant Montalvo & Son Auto
Repair Center, Ltd., pursuant to CPLR 3211(a)(7) to dismiss
the complaint insofar as asserted against it made at the
close of the plaintiff's case at a trial on the issue of
liability on remittitur, is against him and in favor of that
defendant, in effect, dismissing the complaint insofar as
asserted against that defendant and in the sum of $1, 450,
constituting costs and disbursements.
that the judgment is reversed, on the law, with costs, the
motion of the defendant Montalvo & Son Auto Repair
Center, Ltd., pursuant to CPLR 3211(a)(7) to dismiss the
complaint insofar as asserted against it is denied, the
complaint is reinstated insofar as asserted against that
defendant, the order dated April 23, 2015, is modified
accordingly, and the matter is remitted to Supreme Court,
Kings County, for a new trial on the issue of liability only
before a different Justice.
personal injury action, the plaintiff alleged that one of his
fingers was injured on a tow truck owned by the defendant
Montalvo & Son Auto Repair Center, Ltd. (hereinafter
Montalvo), during the course of his employment with Montalvo.
The underlying facts and procedural history are summarized in
this Court's decisions and orders in two prior appeals
(see Rosario v Montalvo & Son Auto Repair Ctr.,
Ltd., 118 A.D.3d 973; 76 A.D.3d 963). In our most recent
decision and order, we remitted the matter to the Supreme
Court, Kings County, for a new trial on the issue of
liability only. During the liability trial on remittitur, the
plaintiff testified that he was, in fact, employed by
Montalvo at the time of the accident, and that his injury
occurred while working in that capacity. Based on that
testimony, Montalvo moved pursuant to CPLR 3211(a)(7), at the
close of the plaintiff's case, to dismiss the complaint
insofar as asserted against it, arguing that the
plaintiff's exclusive remedy was Workers'
Compensation benefits. The trial court granted the motion.
plaintiff's contention that, by granting Montalvo's
trial motion pursuant to CPLR 3211(a)(7), the trial court
violated the law of the case doctrine or otherwise improperly
disregarded this Court's most recent decision and order
in this matter, is without merit (see generally Bukowski
v Clarkson Univ., 86 A.D.3d 736, affd 19 N.Y.3d
353; Latture v Smith, 304 A.D.2d 534, 535).
Nevertheless, the trial court improperly granted the motion.
"Workers' Compensation benefits are [t]he sole and
exclusive remedy of an employee against his employer for
injuries in the course of employment" (Weiner v City
of New York, 19 N.Y.3d 853, 854 [internal quotation
marks omitted]; see De Los Santos v Butkovich, 126
A.D.3d 845, 846). "This precludes suits against an
employer for injuries in the course of employment"
(Weiner v City of New York, 19 N.Y.3d at 854;
see Cunningham v State of New York, 60 N.Y.2d 248,
251). Here, however, the plaintiff properly elected his
remedy of pursuing this action against Montalvo under
Workers' Compensation Law §§ 11 and 50, since
Montalvo did not carry Workers' Compensation coverage at
the time of the accident (see Chowdhury v 390 Fifth,
2 A.D.3d 560; Matter of Ocasio v Sang Soo Kim, 307
A.D.2d 662), a fact conceded by Montalvo's counsel in a
statement that constituted a judicial admission (see
Naughton v City of New York, 94 A.D.3d 1, 12;
DiCamillo v City of New York, 245 A.D.2d 332, 333).
Accordingly, the trial court should not have granted
Montalvo's trial motion pursuant to CPLR 3211(a)(7).
the matter must be remitted to the Supreme Court, Kings
County, for a new trial on the issue of liability only, in
accordance herewith. In light of certain remarks made by the
Supreme Court which exhibited bias against the plaintiff, a
new trial before a different Justice is required.
plaintiff's remaining contention is improperly raised for
the first time in his reply brief.
DILLON, J.P., AUSTIN, HINDS-RADIX and MALTESE, JJ., concur.
by the respondent, inter alia, to dismiss an appeal from a
judgment of the Supreme Court, Kings County, entered April
28, 2015. By decision and order on motion of this Court dated
November 30, 2015, that branch of the motion which was to
dismiss the appeal was held in abeyance and referred to the
panel of Justices hearing the appeal for determination upon
the argument or submission thereof.
the papers filed in support of the motion and the papers
filed in opposition thereto, and upon ...