Opinion
Index No. 151244/2023 MOTION SEQ. No. 001
05-15-2024
MARITZA SANCHEZ Plaintiff, v. THE CITY OF NEW YORK, Defendant.
Unpublished Opinion
MOTION DATE 06/26/2023
PRESENT: HON. J. MACHELLE SWEETING Justice
DECISION + ORDER ON MOTION
J. Machelle Sweeting Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 were read on this motion to/for DISMISS.
Plaintiff Maritza Sanchez alleges that on July 25, 2022, while working as an Emergency Medical Technician ("EMT") for the New York City Fire Department ("FDNY"), she was restocking her ambulance, that was parked at the FDNY EMS (Emergency Medical Services) station 4 located at Pier 36, when she stepped on broken, uneven, and defective concrete, which caused her to lose her balance and fall.
Plaintiff's Notice of Claim (NYSCEF Doc. 8) states that plaintiff was an EMT on the date of the incident. Subsequently, at plaintiff's 50-h hearing on October 11, 2022 (Transcript at NYSCEF Doc. 11), she testified that she had already become a paramedic.
Pending before the court is a motion where defendant The City of New York (the "City") seeks an order:
a) permitting amendment of its Verified Answer, pursuant to Civil Practice Law and Rules ("CPLR") 3025(b), to assert the affirmative defense of the New York State Workers'
Compensation bar, as plaintiff, at the time of the alleged incident, was an employee of the FDNY, and deeming the City's Amended Answer served nunc pro tunc; and
b) upon granting said amendment, pursuant to CPLR 3211(a)(5), dismissing this complaint and any cross-claims against the City as barred by the Workers' Compensation Law.
"On a motion to dismiss, pursuant to CPLR 3211, the pleading is to be afforded a liberal construction […] We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83 [NY Ct. of Appeals 1994]).
Amending City's Answer
Plaintiff does not oppose that branch of the City's motion seeking to amend its Answer. Accordingly, the City's Answer is deemed timely served nunc pro tunc.
Worker's Compensation Law
With respect to the branch of the City's motion seeking to dismiss plaintiff's Complaint as barred by the Workers' Compensation Law, the City argues that the alleged incident occurred while in the course of plaintiff's employment with FDNY, and that plaintiff's injury was covered under the Workers' Compensation Law. The City argues that plaintiff is now precluded by the Worker's Compensation Law from holding the City liable for her injury. In support of its arguments, the City submitted, inter alia, a sworn Affidavit by Levi Grosswald, who is employed as the Deputy Chief of the Workers' Compensation Division of the New York City Law Department (NYSCEF Doc. 12). The Affidavit states, in part, that plaintiff filed Workers' Compensation claim number W057-22-96024 with respect to the subject incident, and that to date, plaintiff has received approximately $8,767.85 in workers' compensation benefits and $8,767.85 in medical benefits.
In opposition, plaintiff argues that because she is an EMS worker for the FDNY, her application for and acceptance of Workers' Compensation benefits does not preclude this action against the City, because plaintiff has a "line of duty claim pursuant to GML [General Municipal Law] 205-E." Plaintiff argues that line of duty claims can be brought against the City by FDNY employees and as such, there should be no bar in this instant action.
In Reply, the City argues that plaintiff can only proceed under GML 205-e if she suffered a "grave injury" as defined by the Worker's Compensation Law, and the alleged injuries of plaintiff in this matter do not qualify as such.
Conclusions of Law
General Municipal Law 205-e provides, in relevant part:
1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any police department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department, or to pay to the spouse and children, or to pay the parents, or to pay the brothers and sisters, being the surviving heirs-at-law of any deceased person thus having lost his life, a sum of money, in case of injury to person, not less than one thousand dollars, and in the case of death not less than five thousand dollars, such liability to be determined and such sums recovered in an action to be instituted by any person injured or the family or relatives of any person killed as aforesaid, provided, however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law [emphasis added].
The court first notes that it is unclear on this record that GML 205-e applies in this case, as this section of the statute appears to apply to police officers only, whereas at the time plaintiff was injured, she was employed by the New York Fire Department. See 15 N.Y. Practice, New York Law of Torts 12:7 (Premises liability-Statutory abolition of firefighter's rule and statutory causes of action for injuries or death to firefighters and police personnel):
In 1989, after the Court of Appeals had in 1988 extended the firefighter's rule to police officers, the Legislature enacted section 205-e of the N.Y. Gen. Mun. Law to create a statutory cause of action on behalf of police employees or their surviving relatives. That section is very similar to section 205-a.18 It "was enacted to bring police officers into parity with firefighters" [Ruotolo v. State, 83 N.Y.2d 248, 609 N.Y.S.2d 148, 151, 631 N.E.2d 90 (1994)] [emphasis added];
N.Y. Pattern Jury Instr.--Civil Division 2 G 7 Intro. 1:
Section 205-e affords police officers a right of action that firefighters have long had under § 205-a, Weiner v New York, 84 A.D.3d 140, 922 N.Y.S.2d 160 (2d Dept 2011), aff'd, 19 N.Y.3d 852, 947 N.Y.S.2d 404, 970 N.E.2d 427 (2012); see Schiavone v New York, 92 N.Y.2d 308, 680 N.Y.S.2d 445, 703 N.E.2d 256 (1998); Desmond v New York, 88 N.Y.2d 455, 646 N.Y.S.2d 492, 669 N.E.2d 472 (1996) [emphasis added];Weiner v City of New York, 19 N.Y.3d 852 (NY Ct. of Appeals 2012):
Weiner's principal argument relies on a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law § 205-e (pertaining to police officers) [emphasis added].
More importantly, even if GML 205-e were applicable here, the New York Court of Appeals has made clear that an employee who receives workers' compensation benefits cannot also seek to hold his employer liable under GML 205-e. See Matter of Diegelman v City of Buffalo, 28 N.Y.3d 231 (2016):
See also 15 N.Y. Practice, New York Law of Torts 12:82. (Liability of employer to employee injured in the course of employment-Exclusivity of Workers' Compensation Law remedy):It is well settled that workers' compensation benefits are generally the "sole and exclusive remedy of an employee against his [or her] employer for injuries in the course of employment," and that the receipt of such benefits "precludes suits against an employer for injuries in the course of employment" (Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 [2012]). Thus, the right of action contained in section 205-e is subject to a proviso that "nothing in th[at] section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law" (General Municipal Law § 205-e [1]). In other words, the proviso prohibits "recipients of workers' compensation benefits [from] su[ing] their employers in tort under section 205-[e]" (Weiner, 19 N.Y.3d at 855, 947 N.Y.S.2d 404, 970 N.E.2d 427) [emphasis added];
In Diegelman v. City of Buffalo, the Court of Appeals had to resolve an appeal that turned on the interplay of General Municipal Law §§ 205-e and 207-c, and the Workers' Compensation Law. As noted, § 205-e permits police officers to bring tort claims for injuries sustained while in performance of their duties, where those injuries are the result of any person's failure to comply with any municipal statute, ordinance or rule. GOL § 207-c provides payment of wages and medical costs to an officer for line-of-duty injuries. When an injured police officer is employed by a municipality that provides workers' compensation coverage, the officer is foreclosed from bringing a tort claim under 205-e, because that statute specifically provides that workers' compensation is the exclusive remedy, thus recipients of these benefits are prohibited from commencing suit against their employers. In Diegelman, the Court had to determine whether a police officer who is injured in a jurisdiction that does not provide workers' compensation coverage for its employees is also precluded from bringing a claim under § 205-e, when the officer had received wages and medical costs pursuant to § 207-c. The Court ruled that, where the municipal employer has elected not to provide coverage under the Workers' Compensation Law, police offices who suffer line-of-duty injuries caused by their employer's statutory or regulatory violations may pursue a claim against their employer under § 205-e […] [emphasis added];
N.Y. Pattern Jury Instr.--Civil Division 2 G 7 Intro. 1:
Section 205-e does not "expand or restrict any right afforded to or any limitations imposed" by virtue of the Workers' Compensation Law, see Diegelman v Buffalo, 28 N.Y.3d 231, 43 N.Y.S.3d 803, 66 N.E.3d 673 (2016); Weiner v New York, 19 N.Y.3d 852, 947 N.Y.S.2d 404, 970 N.E.2d 427 (2012). Thus, a police officer who receives workers' compensation benefits is prohibited from suing his or her employer under GML § 205-e , see Diegelman v Buffalo, supra; Weiner v New York, 19 N.Y.3d 852, 947 N.Y.S.2d 404, 970 N.E.2d 427 (2012) [emphasis added].
Further, although plaintiff does not argue that she has the right to continue this action under GML 205-a, the court notes that, similar to GML 205-e, the New York Court of Appeals has also made clear that an employee who receives workers' compensation benefits cannot seek to hold his or her employer liable under GML 205-a: See Weiner, supra:
Weiner's principal argument relies on a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law § 205-e (pertaining to police officers). Section 205-e contains the same statement found in section 205-a that the cause of action created by the statute exists "[i]n addition to any other right of action or recovery under any other provision of law" (General Municipal Law § 205-e [1]). But section 205-e (pertaining to police officers) explicitly provides that "nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law" (General Municipal Law § 205-e [1]). Weiner contends that the omission of this language concerning Workers' Compensation Law in section 205-a with respect to firefighters was deliberate. We disagree.
Had the Legislature intended to give firefighters, but not police officers, the right to sue as well as receive workers' compensation benefits, this distinction, we are certain, would have been evident in the legislative history. It is not. […]
We conclude that it was not the intent of the Legislature to allow recipients of workers' compensation benefits to sue their employers in tort under section 205-a [emphasis added].See also Walsh v Knudsen, 198 A.D.3d 843 (2d Dept 2021):
Under the Workers' Compensation Law, "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee ... when such employee is injured or killed by the negligence or wrong of another in the same employ." Thus, the Workers' Compensation Law "offers the only remedy for injuries caused by [a] coemployee's negligence" in the course of employment. "[A] defendant, to have the protection of the exclusivity provision, must himself [or herself] have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort" [internal citations omitted];McNulty v Port Washington Police Dist, 191 A.D.3d 659 (2d Dept 2021):
The Workers' Compensation Law is designed to ensure that an employee injured in the course of his or her employment will be made whole and to protect a coemployee who, acting within the scope of his or her employment, caused the injury. "Workers' compensation qualifies as an exclusive remedy when both the plaintiff and the defendant are acting within the scope of their employment, as coemployees, at the time of injury." Under the Workers' Compensation Law, "[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee ... when such employee is injured or killed by the negligence or wrong of another in the same employ." Thus, the Workers' Compensation Law "offers the only remedy for injuries caused by [a] coemployee's negligence" in the course of employment [internal citations omitted];
Finally, with respect to Gonzalez v Iocovello (93 N.Y.2d 539, 549 [1999]), the case relied on by plaintiff, this case predates Weiner in 2012 and Diegelman in 2016. Both of these more recent cases were quoted at length above. Further, Gonzalez did not address the key issue here of the interplay between the GML and the Workers' Compensation Law.
Plaintiff also cited Matter of Estrella v City of New York, 25 Misc.3d 1207(A) (Sup Ct 2009), which is not binding on this court. Moreover, this case addresses GML 205-a (which plaintiff argues is inapplicable here) and not GML 205-e (which plaintiff here argues is applicable). Further, the Estrella court stated:
Respondents contend that Workers Compensation Law is the exclusive remedy for petitioner and therefore, even if his petition to file a late notice of claim is granted, his claim is merit less. This Court, however, recently ruled in Mark Weiner v. The City of New York, Index No. 822/08 that plaintiff Weiner who was an employee (but not a firefighter) of the New York City Fire Department was among the class of persons covered by General Municipal Law § 205-a and could therefore maintain a complaint against the City of New York.
The Court based its ruling in Weiner on Lo Tempio v. City of Buffalo, 6 A.D.3d 1197 (4th Dept.2004) which held that a civilian employee of the Buffalo Fire Department was among the class of persons covered by GML § 205-a [emphasis added].
Importantly, the 4th Department Lo Tempio case was abrogated by the Weiner case, cited above:
It follows, then, that Lo Tempio was wrongly decided insofar as that Court held that a plaintiff's acceptance of workers' compensation benefits does not preclude a tort action against his or her employer (Weiner, supra).
Conclusion
For the reasons above, it is hereby:
ORDERED that the City's motion is GRANTED in its entirety; and it is further
ORDERED that the Complaint and any cross-claims against the City are dismissed with prejudice; and it is further
ORDERED that this action is closed.