OBEN v. CHARMER INDUSTRIES INC (2007)

In an action to recover damages, in effect, for negligence, the defendant Charmer Industries, Inc., appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated October 3, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, with costs, and the motion of the defendant Charmer Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.

 “While an intentional tort may give rise to a cause of action outside the ambit of the Workers' Compensation Law, the complaint must allege ‘an intentional or deliberate act by the employer directed at causing harm to this particular employee’ ” (McNally v. Posterloid Corp., 15 A.D.3d 456, 457, 789 N.Y.S.2d 445, quoting Mylroie v. GAF Corp., 81 A.D.2d 994, 995, 440 N.Y.S.2d 67, affd. 55 N.Y.2d 893, 449 N.Y.S.2d 21, 433 N.E.2d 1269).   The plaintiff's allegations failed to establish the elements of an intentional tort so as to fall under this exception to the exclusivity provision of Workers' Compensation Law § 29 (see McNally v. Posterloid Corp., supra;  Fucile v. Grand Union Co., 270 A.D.2d 227, 228, 705 N.Y.S.2d 377;  Edgarian v. Boxart, Inc., 237 A.D.2d 484, 655 N.Y.S.2d 979).   Accordingly, the Supreme Court should have granted the motion of the defendant Charmer Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against it.