Ferguson v. Don Davis Auto World, Inc.

Sep 30, 1994
Versions:207 A.D.2d 991
617 N.Y.S.2d 98
1994 N.Y. App. Div. LEXIS 10206

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this action by plaintiff against his former employer, Supreme Court properly granted summary judgment dismissing the fourth cause of action alleging prima facie tort and those portions of the first and second causes of action alleging intentional and willful conduct. Plaintiff did not allege intentional or deliberate acts by the employer directed at causing harm to him in particular, and his allegations that the employer intentionally failed to provide safe working conditions do not bring this case within the intentional injury exception to the exclusivity provisions of the Workers’ Compensation Law (see, Briggs v Pymm Thermometer Corp., 147 AD2d 433, 436; Orzechowski v Warner-Lambert Co., 92 AD2d 110, 112-113). Insofar as defendant sought to dismiss the remaining causes of action, however, defendant’s motion should have been held in abeyance while those causes of action were referred to the Workers’ Compensation Board to determine whether plaintiff was acting within the scope of his employment (see, Ralph v Oliver, 186 AD2d 977; Rivera v Lopez, 167 AD2d 953).

We have reviewed plaintiff’s remaining arguments and conclude that they are without merit. (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Green, J. P., Balio, Wesley, Callahan and Boehm, JJ.