Baksh v. Yassky

600 N.Y.S.2d 65 | N.Y. App. Div. | 1993

Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered November 12, 1992, which denied the motion of defendant John Mados for summary judgment, is unanimously reversed, on the law, and the motion granted, without costs or disbursements. The Clerk is directed to enter judgment in favor of defendant John Mados severing and dismissing the complaint as against him.

Defendant’s motion for summary judgment, based upon the affirmative defense that the Workers’ Compensation Law provided the exclusive remedy for plaintiffs on-the-job personal injury claim, was supported by a deposition at which plaintiff acknowledged she knew defendant, John Mados, and his wife, Suzanne Mados, were the operators of the hotel and was introduced to them when she was hired. Defendant also submitted other documentary evidence that he and his wife Suzanne are the sole partners of the Wyndham Company, through which they leased the premises, operated the Wyndham Hotel and employed plaintiff. Further, documentary evidence was submitted that defendant and his wife obtained a workers’ compensation insurance policy covering the hotel’s employees, including plaintiff, who received benefits under it in connection with the accident.

In opposition, plaintiff submitted only an attorney’s affirmation which had no probative value. She failed to offer any facts to counter the documentary proof which established that she was employed by the partnership through which defendant and his wife operated the hotel.

Since no factual issues were raised, the IAS Court erred in denying the motion for summary judgment based on the workers’ compensation defense (see, O’Connor v Midiria, 55 NY2d 538). Such defense would also preclude plaintiff-employee from bringing a common-law cause of action against a member of the partnership which is her employer (Williams v Hartshorn, 296 NY 49). Concur—Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.