283 A.D. 303 | N.Y. App. Div. | 1954
We are of the opinion that there is no issue of fact to be tried out and that, therefore, the defendants’ motion for summary judgment should have been granted. Inasmuch as there was no appeal from the order on the previous motion to dismiss the complaint for legal insufficiency, we are bound by that order. However, we feel constrained to say that we think the complaint is one based upon negligence and does not state a cause of action for willful assault. Nevertheless, we treat the complaint as one for assault by the employer upon the employee. The answer sets up as a defense the securing of workmen’s compensation insurance in accordance with the provisions of the Workmen’s Compensation Law, which insurance was in force and effect at the time of the injury. Furthermore the answer alleges that the employee made claim for workmen’s compensation benefits; that awards were made aggregating over $10,000 which the plaintiff accepted and retained. The claim and the awards are matters of record and are not disputed. Turning to the plaintiff’s complaint, we find it alleged that the plaintiff, at the time of the accident, was the employee of the defendants; that at that time he was actually engaged in his employment as a painter upon a suspended scaffolding and while so engaged, the rope attached to the scaffolding “ suddenly and without warning ” gave way, throwing the plaintiff to the sidewalk and causing the injuries complained of. The complaint alleges negligence on defendants’ part and freedom from contributory negligence. As a conclusion, the complaint states that the defendants ‘ ‘ wilfully, wantonly and unlawfully placed the plaintiff in a perilous position known to them and, therefore, were guilty of a personal, wilful, wanton tort and an intentional assault upon the plaintiff.” While no facts are pleaded to show an intentional and wanton assault, we are concluded by the first order denying dismissal. The affidavit in opposition to the motion now before us is made by one of plaintiff’s attorneys who palpably had no first-hand knowledge of the facts. This affidavit merely sets forth that deponent has read the moving affidavit of defendants ’ attorney and “ has arrived at the conclusion which he verily believes that all statements of fact and conclusions contained within are totally irrelevant, incompetent and immaterial as
As to the appellants’ first point, we are not prepared to hold, in the absence of controlling authority, that an employee may not maintain a common-law action against his insured employer, for an intentional, willful, wanton and malicious assault by his employer, even where it occurred during the course of and within the scope of the employment. There is authority that such an assault is not an 1‘ accidental injury ’ ’ within the meaning of subdivision 7 of section 2 of the Workmen’s Compensation Law and that, therefore, the liability of the employer as provided for in the statute, is not the exclusive liability. (De Coigne v. Ludlum Steel Co., 251 App. Div. 662; Le Pochat v. Pendleton, 187 Misc. 296, affd. 271 App. Div. 964; Mazarredo v. Levine, 274 App. Div. 122; Lavin v. Goldberg Bldg. Material Corp., 274 App. Div. 690.) This question was before the Minnesota courts. (See Boek v. Wong Hing, 180 Minn. 470, and Breimhorst v. Beckman, 227 Minn. 409.)
In the instant case, we have an element not present in some of the other cases above cited. It appears without contradiction that not only had the defendants-appellants effected workmen’s compensation insurance which was in full force but that the plaintiff-respondent had availed himself of the benefits of such insurance. He had the right to do so since it is unquestioned that the accident arose out of and during the course of his employment. There is a distinction between “ being entitled to take compensation ” and “ having taken compensation.” (Grossman v. Consolidated Edison Co., 294 N. Y. 39.) Assuming that the plaintiff had a common-law action for willful assault, we think he lost such remedy by choosing instead to avail himself of the benefits of workmen’s compensation, given to him by the statute without requiring him to prove negligence, freedom from contributory negligence, willful assault or anything else
Order reversed on the law and facts, with $10 costs aud disbursements and motion granted with $10 costs