Opinion
December 13, 1999.
Sedgwick, Detert, Moran Arnold (Kenneth R. Bozza of counsel), for Jewish Board of Family and Children's Services, Inc., defendant.
Mason Breitenecker (Elizabeth A. Mason of counsel), for plaintiffs.
Defendant Jewish Board of Family and Children's Services, Inc., with its related entities as named in the Verified Complaint (hereinafter referred to as "JBFCS") has moved for an Order pursuant to CPLR Secs. 3211 and 3212 dismissing the Plaintiff's Complaint, on the grounds that all causes of action contained therein are barred by the provisions of New York State's Workers' Compensation Law § 11 Work. Comp., et. seq. The Plaintiff, in turn, has cross-moved for an Order (a) pursuant to CPLR § 3211, [ 3211](b) denying defendant's motion for failure to state a defense and (b) striking the Defendant's affirmative defense of Workers' Compensation, as insufficient as a matter of law pursuant to CPLR § 3211(b).
The instant lawsuit was commenced by the filing of the plaintiffs Summons and Verified Complaint on or about October 16, 1998. Issue was joined as to Defendant JBFCS by service of its answer on or about November 23, 1998. As set forth in the complaint, Defendant Pearl Residence ("Pearl") is the owner of the premises. Defendant JBFCS (and its wholly owned and operated subsidiary, Brooklyn Community Residence) leased the space from Pearl. Plaintiff Evelyn Melo alleges personal injuries sustained as a result of an attack, rape and robbery by an unidentified assailant inside the Brooklyn Community Residence located at 1380 36th St., in Brooklyn, New York. In her response to defendant's Notice to Admit dated December 18, 1998, as well as in her Verified Bill of Particulars, Plaintiff Evelyn Melo admitted that on the alleged date of the incident, she was an employee of and working for JBFCS. The affidavit of Ellen Josem, Esq., General Counsel for JBFCS similarly reflects this information.
Defendant-Movant contends that Plaintiff's tort action against it must be dismissed in accordance with the relevant provisions of New York's Workers' Compensation Law, which creates an exclusive remedy as to an employee who is injured during the course of employment.Workers' Compensation Law § 11, [11 Work. Comp.]; Malacarne v. City of Yonkers Parking Authority, 41 N.Y.2d 189, 391 N.Y.S.2d 402; Duche v. Star Recycling 261 A.D.2d 503, 690 N.Y.S.2d 605. However, the gravamen of the Plaintiff's cross-motion is that the Defendant has failed to demonstrate that the Plaintiff was the victim of an accidental workplace injury, which would remove her cause of action from the ambit of Workers' Compensation.
An employee is entitled to receive compensation on a "no-fault" basis for all injuries "arising out of and in the course of employment." (Workers' Compensation Law § 10, [10 Work. Comp.] [1];Mtr. Of Johannesen v. DHPD, 84 N.Y.2d 129. To effectuate the statutory objectives, Workers' Compensation Law § 21, [21 Work. Comp.] (1) creates a presumption that injuries "arising out of and in the course of" employment are compensable under Section 10 (1) as "accidents" (Matter of Richardson v. Fiedler Roofing, 67 N.Y.2d 246, 251). Given the remedial nature of the Workers' Compensation Law, New York's courts have construed the statute with a view toward giving very wide latitude in determining whether a disabling condition is an accident (Matter of Johannensen, supra at 134) and the Court of Appeals has noted that an accidental injury must be gauged by the common-sense viewpoint of the average person.Matter of Middleton vs. Coxsackie Correctional Facility, 38 N.Y.2d 130, 134, Matter of Masse v. Robinson Co., 301 N.Y. 34, 37.
There are only two exceptions to the finality and exclusivity provisions of the Workers Compensation Law. The first, not an issue in this case, is where the employer fails to procure insurance for the purpose of securing the payment of compensation. Workers Compensation Law § 11, [11 Work. Comp.] O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553. The second is where the injury complained of is the product of an intentional and deliberate act of an employer directed at causing harm to an employee. (See Blanchard v. Intergrated Food Systems, 220 A.D.2d 895, 632 N.Y.S.2d 329; Acevedo v. Consolidated Edison, 189 A.D.2d 497, 596 N.Y.S.2d 68.)
Although Plaintiff was the victim of a horrifying experience, she has failed to demonstrate that the exclusive remedy of Workers' Compensation does not pre-empt her right to maintain a tort action before this Court. Contrary to her contention, Defendant has presented ample proof of the fact that it employed the plaintiff at the time of the incident, and that the incident occurred during the course of, and arose out of, the Plaintiff's employment. (See Malacarne v. City of Yonkers. supra.) Moreover, the central premise advanced by Plaintiff — that this was not an accidental injury — is without merit.
As noted by the Court of Appeals, "The term of art, accidental injury, lacks a statutory definition. . . ." (Matter of Johannesen, supra, 84 N.Y.2d 129, 136). Plaintiff's argument that rape is not a compensable injury within the purview of the Workers Compensation Law, is unsupported in this context by the cited cases which plaintiff purports stand for this assertion. InJoshua S. v. Casey, 206 A.D.2d 839, the Appellate Division, Fourth Department, in granting a motion made by defendant employer to dismiss a claim of sexual abuse under the doctrine ofrespondent superior, held that the alleged sexual assault by its employee was not within the scope of employment and could not be said to have been in furtherance of the employer's business. Similarly, in the cited First Department case of Nicollette T. v. Hospital for Joint Diseases/Orthopedic Institute, 198 A.D.2d 54, Workers Compensation was not an issue and the Court, in affirming dismissal of the Complaint, held that the employee's acts fell outside the scope of his employment. Equally unavailing is Plaintiff's reliance on Noto v. St. Vincent's Hospital, 160 A.D.2d 656, or Curtis v. City of Utica, 209 A.D.2d 1024. All of these cases deal with the employer's liability for intentional tortious acts committed by an employee, and are irrelevant in this context. None support the Plaintiff's contention that rape, as an intentional act, cannot be considered an accidental workplace injury.
Similarly misplaced is Plaintiff's reliance on the language inMintiks v. Metropolitan Opera Association, 153 A.D.2d 133, 550 N.Y.S.2d 143. In Mintiks, the Workers' Compensation Board made an award of death benefits in connection with the murder of a violinist during a performance intermission, and the decedent's husband, who was seeking to pursue a wrongful death action, appealed. The Appellate Division, Third Department, remitted the matter to the Board for clarification as to whether the Board in fact weighed the available evidence and properly determined that the statutory presumption in favor of compensability as set forth in Section 21 of the Workers Compensation Law was not rebutted. ( 153 A.D.2d 133, 138.) Although Plaintiff correctly cites language quoted by the Court that 'there is no clearer example of non-industrial motive than rape' ( 153 A.D.2d 133 at 137), Plaintiff fails to acknowledge that in Mintiks, unlike here, the perpetrator was an employee of the respondent. In that regard, the Appellate Division discussed the operative standard for compensable workplace injury in New York as requiring that a rational causal nexus exist between the employment and the injury. 153 A.D.2d 133, 137, 550 N.Y.S.2d 143, 145. It then went on to conclude that while there was no basis in the record for concluding that the Metropolitan Opera constituted a dangerous work environment, the issue yet to be determined was whether the Board could properly find, based upon the statutory presumption, that the assault was motivated by some factor, such as animus between the assailant and the decedent, which was related to the decedent's employment. 153 A.D.2d 133, 137, 550 N.Y.S.2d 143, 145.
However, the Mintiks Court never held, as Plaintiff incorrectly contends, that "because the woman who was raped and murdered did not know the criminal, it was apparent that the rape and murder did not arise out of the deceased employee's employment" (Plaintiff's Memorandum, p. 5). Nor is there support in Mintiks for the bald assertion that the Court "refused to accept a finding that a sexual assault and murder arose out of the employee's work relationship" (Id., p. 8), since as noted, the Court, troubled by what it perceived to be an incomplete record, remitted the matter for clarification. ( 153 A.D.2d at 138, 550 N YS.2d at 145). Finally, Plaintiff falls to acknowledge the holding of the Mintiks Court that "In the context of assaults upon an employee, the causal link may be supplied by a work environment which increased the risks of attacks" ( 153 A.D.2d 133, 137, 550 N.Y.S.2d 145).
By significant contrast to Mintiks and cases cited by Plaintiff which involved assaults committed by co-employees (e.g., Matter of Scholtzauer v. C.L. Lunch Co., 233 N.Y. 12, Prior v. Presbyterian Home for Aged, 9 N.Y.2d 869, 175 N.E.2d 823, 216 N.Y.S.2d 691) or occurred outside the physical workplace (Aierlo v. Haft, 247 N.Y.2d 602, 161 N.E. 199), the facts here militate a finding in favor of the presumption of compensability, since they clearly, and admittedly, involve an unknown and unapprehended intruder who breached whatever security was in place at the time in question and assaulted Plaintiff (see Boston v. Medical Services for Women 215 A.D.2d 845, 626 N.Y.S.2d 320). Plaintiff has relied on misstatements of the law, and unacceptable bald assertions that because of the defendant's attorney's conduct in asserting an affirmative defense, the Plaintiff's condition worsened. However, Plaintiff has failed to show how, if at all, Defendant is in any way chargeable with any deliberate conduct directly involving the assault (Lavigna v. Capital Cities/ABC. Inc., 257 A.D.2d 470 683 N.Y.S.2d 536), or succeeded in rebutting the strong presumption set forth in Section 21, [21 Work. Comp.](1) of the Workers Compensation Law. Accordingly, the Defendant's motion for an order dismissing the complaint as to it and its related entities is granted, and the cross-motion is denied. The Defendant's application for costs, as set forth in its Affidavit in support, is granted.