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

William J. FIOCCA et al., Respondents-Appellants, v. Lewis KIRSCHNER, as Limited Administrator of the Estate of Julie Labodin, Deceased, Appellant-Respondent.

Decided: May 16, 2002

Before:  CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and ROSE, JJ. Cook, Tucker, Netter & Cloonan, Kingston (Eric M. Kurtz of counsel), for appellant-respondent. Basch & Keegan L.L.P., Kingston (Maureen A. Keegan of counsel), for respondents-appellants.

Cross appeals from an order of the Supreme Court (Vogt, J.H.O.), entered October 11, 2001 in Ulster County, which granted defendant's motion to amend his answer and denied defendant's motion to dismiss the complaint.

On November 21, 1996, plaintiff William J. Fiocca (hereinafter plaintiff) and Julie Labodin were both employees of the U.S. Postal Service and worked at one of its facilities in Orange County.   On that date, plaintiff, while walking to his car during a routine break in his shift, was hit by Labodin's vehicle in the employee parking lot.   Labodin had just arrived at the facility and was looking for a parking space shortly before her scheduled work shift.   There is no dispute that, because he was injured in the course of his employment, plaintiff has been collecting benefits under the Federal Employees' Compensation Act (see, 5 USC § 8101 et seq.).

In June 1998, plaintiff and his wife, derivatively, commenced this action against Labodin alleging that plaintiff's injuries resulted from the negligent manner in which she operated her vehicle.1 Shortly before the start of the June 4, 2001 trial in this matter (i.e., by letter dated May 24, 2001 to Supreme Court), defendant sought for the first time to interject the exclusivity provisions of Workers' Compensation Law § 29(6) into the case.   A subsequent motion to amend the answer to include the exclusivity provisions of this statute was granted by Supreme Court after a hearing, but defendant's simultaneous motion to dismiss the complaint on this ground was denied based on the court's determination that Labodin was not acting in the scope of her employment when she hit plaintiff.   The parties cross-appeal, plaintiff claiming that Supreme Court erred in permitting the amendment and defendant claiming that the court erred in not dismissing the entire complaint.

Since it is beyond cavil that plaintiff was not receiving workers' compensation benefits under this State's Workers' Compensation Law-he being a postal employee collecting Federal benefits-Supreme Court erred in permitting the amendment as that law is inapplicable to the case at bar.2  Rather, various Federal statutes are implicated and controlling, namely, the Federal Employees' Compensation Act and the Federal Employees Liability Reform and Tort Compensation Act of 1988, also referred to as the Westfall Act (see, 28 USC § 2679 et seq.).   The Westfall Act provides Federal employees with absolute immunity for common-law torts committed in the scope of employment and substitutes the United States in their place (see, 28 USC § 2679[d][1] ).

Unfortunately, defendant has yet to avail himself of the benefits of this statutory scheme by following the applicable statutory procedures (see, 28 USC § 2679[c], [d][1], [2];  Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 431, 115 S.Ct. 2227, 132 L.Ed.2d 375 [“If the action was initiated by the tort plaintiff in state court, the Attorney General, on the defendant-employee's petition, is to enter the case and may remove it to the federal court so that the scope [of employment] determination can be made in the federal forum”];  see also, Combs v. United States, 768 F.Supp. 584;  Tassin v. Neneman, 766 F.Supp. 974;  Osik v. Gardner, 1997 WL 15398, Super.Ct. [Ct.], Jan. 9, 1997, Hendel, J.;   compare, Nasuti v. Scannell, 906 F.2d 802;  Jones v. Autry, 105 F Supp 2d 553;  Garcia v. Pizzolato, 2000 WL 328818, U.S. Dist.Ct., S.D.N.Y., Mar. 28, 2000, Casey, J.;  Pitt v. Matola, 890 F.Supp. 89;  Padlo v. Spoor, 90 Misc.2d 1002, 396 N.Y.S.2d 798;  Stewart v. State Crop Pest Commn., 307 S.C. 133, 414 S.E.2d 121;  Polishuk v. Beavin, 223 Tenn. 287, 444 S.W.2d 140).   Since defendant has not yet taken the appropriate steps to notify the U.S. Attorney General of the instant action, the U.S. Attorney General has not yet had the opportunity to rule on whether Labodin was acting within the scope of her employment when she hit plaintiff and, if she was, to remove the action to the U.S. District Court (see, 28 USC § 2679 [c], [d] ).3 Under these particular circumstances, this action against defendant remains extant (see, Brennan v. Fatata, 78 Misc.2d 966, 967, 359 N.Y.S.2d 91;  see also, Salazar v. Ballesteros, 17 Fed.Appx. 129, U.S. Ct. of Appeals, 4th Cir., Aug. 24, 2001;  Jones v. Littlejohn, 222 Ga.App. 494, 474 S.E.2d 714;  Osik v. Gardner, supra ).   Finding, as we do, that the amendment should not have been permitted, the remaining issues are academic.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as granted defendant's motion to amend his answer;  motion denied;  and, as so modified, affirmed.


1.   Labodin has since passed away and defendant was substituted as a party in May 2001.

2.   Workers' Compensation Law § 29(6) provides that “[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee * * * when such employee is injured * * * by the negligence or wrong of another in the same employ” (emphasis supplied) (compare, Maltsberger v. Board of County Commrs. of Pawnee County, 987 P.2d 437 [Okla.] [applying a more broadly-worded Oklahoma workers' compensation statute] ).

3.   The question of whether Labodin was acting within the scope of her employment is hotly debated by the parties.   Under the Federal statutory scheme, however, resolution of this question must be made in the first instance by the U.S. Attorney General-or his designee (see, 28 CFR 15.3)-and such determination is then subject to Federal judicial review (see, Gutierrez de Martinez v. Lamagno, supra, at 422-427, 115 S.Ct. 2227, 132 L.Ed.2d 375).   As noted by the U.S. Supreme Court, “[t]he certification, removal, and substitution provisions of the Westfall Act * * * work together to assure that, when scope of employment is in controversy, that matter, key to the application of the [Federal Tort Claims Act], may be resolved in [F]ederal court” (id., at 430-431, 115 S.Ct. 2227, 132 L.Ed.2d 375).



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