RUIZ v. (and a third-party action). (2008)

In an action, inter alia, to recover damages for wrongful death, the defendant Old Navy, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated October 6, 2006, as, upon reargument, adhered to a determination in an order dated June 22, 2006, denying, as premature, its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Initially, we note that a previous appeal by Old Navy, Inc. (hereinafter Old Navy), from the order dated June 22, 2006, was dismissed by decision and order on motion of this Court dated August 13, 2007, for failure to prosecute (see 22 NYCRR 670.8[h] ).  Although Old Navy ordinarily would be precluded from relitigating on this appeal issues that could have been raised on the prior appeal (see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86;  Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575), under the circumstances of this case, we exercise our discretion to entertain this appeal (see Sharp v. Sharp, 27 A.D.3d 639, 810 N.Y.S.2d 680;  Roland v. Ajamian, 17 A.D.3d 440, 792 N.Y.S.2d 618;  Rose v. Horton Med. Ctr., 5 A.D.3d 459, 460, 773 N.Y.S.2d 114).

 With respect to the merits of the motion, although Old Navy demonstrated its prima facie entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572), the Supreme Court properly denied the motion as premature (see Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183;  Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 792-793, 533 N.Y.S.2d 143).   “CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated” (Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d at 637, 815 N.Y.S.2d 183).  “This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” (Baron v. Incorporated Vil. of Freeport, 143 A.D.2d at 793, 533 N.Y.S.2d 143).   Here, the plaintiffs raised issues warranting further discovery.   Accordingly, the Supreme Court properly denied, as premature, Old Navy's motion for summary judgment.

 Further, contrary to Old Navy's contention, the action is not barred by the exclusivity provision of the Workers' Compensation Law (see Workers' Compensation Law § 11).  “In determining whether the victim of an assault is entitled to workers' compensation benefits, the test is whether the assault originated in work-related differences or from pure personal animosity between the combatants” (Matter of Baker v. Hudson Val. Nursing Home, 233 A.D.2d 608, 608, 649 N.Y.S.2d 105;  see Matter of Perez v. Victory Motor Inn, 2 A.D.3d 963, 963-964, 767 N.Y.S.2d 673;  Matter of Blair v. Bailey, 279 A.D.2d 941, 942, 719 N.Y.S.2d 757;  Matter of Rosen v. First Manhattan Bank, 202 A.D.2d 864, 865, 609 N.Y.S.2d 436;  Matter of Privatera v. Yellow Cab Co., 158 A.D.2d 835, 836, 551 N.Y.S.2d 419;  Matter of Arrington v. Schneider, 75 A.D.2d 963, 428 N.Y.S.2d 350).   Here, Old Navy's assertion that the assault was work-related because the decedent's assailant, the defendant Kevin Griffin, knew the decedent from the decedent's employment at Old Navy and perceived the decedent as a rival for the affection of the decedent's coworker at Old Navy, is without merit (see Matter of Scholtzhauer v. C. & L. Lunch Co., 233 N.Y. 12, 15, 134 N.E. 701;  Matter of McMillan v. Dodsworth, 254 A.D.2d 619, 679 N.Y.S.2d 722;  Matter of Russo v. HRT Inc. of Orange County, 246 A.D.2d 933, 667 N.Y.S.2d 854;  Matter of Mintiks v. Metropolitan Opera Assn., 153 A.D.2d 133, 137, 550 N.Y.S.2d 143).