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Supreme Court, Appellate Division, Fourth Department, New York.

Tracy McKNIGHT and Vincent McKnight, Plaintiffs-Respondents, v. MARINER RESTAURANT and Lawrence Comins, Defendants-Appellants.

Decided: December 31, 2003

PRESENT:  PINE, J.P., WISNER, HURLBUTT, GORSKI, AND LAWTON, JJ. Wisner, Saunders & Livingston, Watertown (Michael D. Saunders of Counsel), for Defendants-Appellants. Robert A. Durr, Syracuse, for Plaintiffs-Respondents.

 Plaintiffs commenced this action asserting claims for negligence and assault based on an incident in which defendant Lawrence Comins, the owner of defendant Mariner Restaurant (Restaurant), allegedly assaulted Tracy McKnight (plaintiff), a Restaurant employee.   Supreme Court properly denied that part of defendants' cross motion for summary judgment seeking to dismiss plaintiffs' assault claim.   The exclusivity provisions of Workers' Compensation Law § 29(6) do not bar a cause of action for intentional assault, even where, as here, plaintiff has applied for and received workers' compensation benefits based on the determination of the Workers' Compensation Board that the incident occurred within the course of plaintiff's employment (see Ralph v. Oliver, 186 A.D.2d 977, 588 N.Y.S.2d 444).   However, the court erred in denying that part of defendants' cross motion seeking to dismiss plaintiffs' negligence claim, inasmuch as that claim is barred by Workers' Compensation Law § 29(6) (see Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 542-543, 429 N.Y.S.2d 622, 407 N.E.2d 466;  Legault v. Brown, 283 App.Div. 303, 304, 127 N.Y.S.2d 601).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting defendants' cross motion in part and dismissing the negligence claim and as modified the order is affirmed without costs.