From Casetext: Smarter Legal Research

Oben v. Charmer Industries, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Feb 27, 2007
37 A.D.3d 791 (N.Y. App. Div. 2007)

Opinion

No. 2005-11533.

February 27, 2007.

In an action to recover damages, in effect, for negligence, the defendant Charmer Industries, Inc., appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated October 3, 2005, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Robin, Harris, King, Yuhas, Fodera Richman, New York, N.Y.(Jeffrey L. Richman of counsel), for appellant.

Burns Harris, New York, N.Y. (David M. Freeman of counsel), for respondent.

Before: Schmidt, J.P., Rivera, Covello and Balkin, JJ.


Ordered that the order is reversed, with costs, and the motion of the defendant Charmer Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against it is granted.

"While an intentional tort may give rise to a cause of action outside the ambit of the Workers' Compensation Law, the complaint must allege `an intentional or deliberate act by the employer directed at causing harm to this particular employee'" ( McNally v Posterloid Corp., 15 AD3d 456, 457, quoting Mylroie v GAF Corp., 81 AD2d 994, 995, affd 55 NY2d 893). The plaintiffs allegations failed to establish the elements of an intentional tort so as to fall under this exception to the exclusivity provision of Workers' Compensation Law § 29 ( see McNally v Posterloid Corp., supra; Fucile v Grand Union Co., 270 AD2d 227, 228; Edgarian v Boxart, Inc., 237 AD2d 484). Accordingly, the Supreme Court should have granted the motion of the defendant Charmer Industries, Inc., for summary judgment dismissing the complaint insofar as asserted against it.


Summaries of

Oben v. Charmer Industries, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Feb 27, 2007
37 A.D.3d 791 (N.Y. App. Div. 2007)
Case details for

Oben v. Charmer Industries, Inc.

Case Details

Full title:MURIEL OBEN, Respondent, v. CHARMER INDUSTRIES, INC., Appellant, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 27, 2007

Citations

37 A.D.3d 791 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 1703
831 N.Y.S.2d 461

Citing Cases

Vanwagenen v. Sark Wire Corp.

While an intentional tort may give rise to a cause of action outside the ambit of Workers' Compensation Law,…

Reynolds v. All Island Media, Inc.

To constitute an intentional tort, the employer's conduct "must be engaged in with the desire to bring about…