BUENANO v. Bermain Irizarry et al., Defendants. (2025)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered April 1, 2024, which granted defendants The City of New York and New York City Department of Parks and Recreation's (together, defendants) motion to reargue their motion for summary judgment dismissing all claims and cross-claims against them and, upon reargument, denied their motion as premature, unanimously reversed, on the law, without costs, the motion granted, and, upon a search of the record, the motion also granted with respect to defendant Quevarda Cummings.  Appeal from order, same court and Justice, entered October 6, 2023, unanimously dismissed, without costs, as academic.

Plaintiff was a passenger in a City vehicle being driven by defendant and City employee Cummings.  Plaintiff was convicted of unlicensed vending and sentenced to three days of community service, and she was being transported to complete her second day of service for the Parks Department.  While the City vehicle was near an intersection, it was struck by a vehicle owned and operated by defendant Bermain Irizarry, causing plaintiff injuries.

Defendants made a prima facie showing of entitlement to summary judgment by proffering a decision from the Workers' Compensation Board, which concluded that plaintiff was an employee of the City and the Parks Department at the time of the accident and awarded her workers' compensation benefits (see Workers' Compensation Law § 3[1] [group 19]).  The workers' compensation benefits are plaintiff's exclusive remedy, and she is therefore precluded from pursuing civil claims against defendants (see Workers' Compensation Law § 11[1];  O'Rourke v. Long, 41 N.Y.2d 219, 221, 391 N.Y.S.2d 553, 359 N.E.2d 1347 [1976];  Liss v. Trans Auto Sys., Inc., 68 N.Y.2d 15, 21, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986]).

The court improperly found defendants' motion to be premature under CPLR 3212(f), as plaintiff failed to demonstrate that further discovery was required to avoid summary judgment (see Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 A.D.3d 557, 557, 843 N.Y.S.2d 630 [1st Dept. 2007]).  Plaintiff acknowledges that she filed a workers' compensation claim against the City and the Parks Department, and she does not dispute that the Workers' Compensation Board issued a decision awarding her benefits;  plaintiff solely argues that disputed issues of fact remain because she alleges that she has yet to receive payments.  However, courts consistently “grant[ ] summary judgment dismissing tort claims against employers when the exclusive remedy of worker's compensation benefits has already been awarded” (Martinez v. 250 W. 43 Owner, LLC, 179 A.D.3d 420, 421, 116 N.Y.S.3d 241 [1st Dept. 2020];  see also Liss, 68 N.Y.2d at 21, 505 N.Y.S.2d 831, 496 N.E.2d 851).  Moreover, plaintiff did not show that additional information regarding whether she received any workers' compensation payments is within defendants' exclusive possession or that she made further attempts to obtain that information (see River Park Assoc. [1972] L.P. v. Richman Plaza Garage Corp., 178 A.D.3d 422, 423, 115 N.Y.S.3d 13 [1st Dept. 2019]).

Upon a search of the record, summary judgment dismissing plaintiff's claims against defendant Cummings, the City employee driving the vehicle, should be granted (see Merritt Hill Vineyards, Inc. v. Windy Hgts. Vineyard, Inc., 61 N.Y.2d 106, 110–111, 472 N.Y.S.2d 592, 460 N.E.2d 1077 [1984]).  The Workers' Compensation Law bars a tort action against an allegedly negligent co-employee (see Workers' Compensation Law § 29[6];  DeJesus v. Todaro, 48 A.D.3d 341, 343, 852 N.Y.S.2d 96 [1st Dept. 2008]).