42 A.D.2d 776 | N.Y. App. Div. | 1973
In a medical malpractice action to recover damages for personal injuries, the appeal is from an order of the Supreme Court, Kings County, entered January 3, 1973, which (1) denied a motion by defendant Iserson, pursuant to CPLR 3211, to dismiss the complaint for lack of jurisdiction of the subject matter of the action and (2) directed an immediate trial of the issue of whether plaintiff’s injuries were sustained in the course of his employment. Order reversed, on the law, with $20 costs and disbursements, and motion granted. The following facts are essentially undisputed: Plaintiff, an employee of defendant Imperial Paper Box Corporation, returned to work on June 8, 1972 after an absence of a few days and complained of a cold. He was treated in an infirmary on the premises by Dr. Howard M. Iserson, who allegedly gave him an injection in a negligent manner, causing him injury. Dr. Iserson, now deceased, was employed by Imperial at a weekly salary of $100 per week to provide medical care for the -employees of Imperial and was required to devote four hours on each of three Separate days a week on Imperial’s premises for that purpose. The usual deductions' were made from Iserson’s salary check and he was covered under ¡Imperial’s medical plan and its workmen’s compensation insurance policy. It is settled that under subdivision 6 of section 29 of the Workmen’s Compensation Law the only remedy available to an employee injured in the course of his employment by the negligence of a fellow employee is to claim workmen’s compensation benefits (Naso v. Lafata, 4 IT Y 2d 585, 589; Moon v. Finhle, 6 IT Y 2d 831). The Workmen’s Compensation Law is to be given a liberal construction so as to “ embrace all activities which can, in any reasonable sense, • be included within its coverage” (Matter of Wilson v. General Motors Corp., 298 IT. Y. 468, 471). In our opinion, pursuant to that philosophy, the injury herein may reasonably be held to have been a consequence of an act performed