Rosario-Suarz v. Wormuth Bros. Foundry, Inc.Rosario-Suarz v. Wormuth Bros. Foundry, Inc.
Crеw III, J. Appeal from an order of the Supreme Court (Connor, J.), entered October 30, 1995 in Greene County, which denied a motion by defendant Wormuth Brothers Foundry, Inc. for summary judgment dismissing the complaint and all cross claims against it.
On the evening of November 29, 1990, plaintiff suffered a heart attack, which he аlleges began earlier that day while he
Fоllowing joinder of issue, Wormuth moved for summary judgment dismissing the complaint against it and dismissal of Rapport’s cross claims for contribution and indemnificatiоn. Wormuth also requested the imposition of sanctions and counsel fees. Supreme Court denied Wormuth’s motion in its entirety, and this appeal ensued.
As a starting point, we cannot agree with Wormuth that this action is nothing more than an attempt to resuscitate an untimely claim for workers’ compensation benefits. In this regard, it is well settled that "an employee can maintain a common-law action against the employеr if such suit is based, not upon the compensable injury itself, but on a different distinct injury resulting from the impairment of the employee’s legal rights to workers’ compensation benefits” (Coley v Arnot Ogden Mem. Hosp.,
Turning to the merits, we are of the view that Supreme Court erred in failing to grant Wormuth’s motion for summary judgment dismissing plaintiff’s cause of action for prima facie tort. A cause of action for prima facie tort must include "(1) the infliction of intentional harm, (2) resulting in speсial damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise lawful” (Butler v Delaware Otsego Corp.,
In support of its motion for summаry judgment, Wormuth submitted, inter alia, the proof of claim form completed by plaintiff and his treating physician, Terrence Flannery, wherein Flannery indicated thаt plaintiff’s disability was not the result of an injury "arising out of and in the course of employment or occupational disease”, and an affidavit from its then-personnel manager, Kathleen Roeben, who averred that plaintiff never informed her that he was claiming that his heart attack constituted a work-related injury and that based upon her conversation with plaintiff, it was her understanding that plaintiff wished to apply solely for disability benefits. Such proof was sufficient to sustain Wormuth’s burden on its motion for summary judgment, thereby shifting the burden to plaintiff to tender sufficient proof in admissible form to rаise a question of fact in this regard. This plaintiff failed to do. Even accepting as true plaintiff’s assertion that, on the day of his heart attack, he informed supervisory personnel that he was experiencing a sharp pain in his right side, such proof is insufficient to raise a question of fаct as to whether Wormuth’s conduct in processing a claim for disability benefits, as opposed to one for workers’ compensation benefits, resulted solely from disinterested malevolence.
We reach a similar conclusion regarding plaintiffs cause of action fоr intentional interference with contract, which requires proof of (1) the existence of a valid contract between the plaintiff and a third party, (2) the defendant’s knowledge of that contract, (3) the defendant’s intentional inducement of the third party to breach that contrаct, and (4) damages (see, Kronos, Inc. v AVX Corp.,
Plaintiff’s final cause of action for fraud, which is based upon Wormuth’s submission of a "false” statement to its compensation carrier representing that plaintiff’s injury was not related to his employment, likewise fails. It is well settled that a cause of action for fraud consists of four elements: (1) misrepresentation of a material fact, (2) scienter, (3) justifiable reliance, and (4) injury or damages (see, E. I. du Pont de Nemours & Co. v Spindle City Distrib.,
As a final matter, аlthough we agree with Wormuth that Rapport’s cross claims for contribution and indemnification must be dismissed as well, we decline the invitation to impose sanctions and counsel fees. Accordingly, Supreme Court’s order should be modified to the extent of granting Wormuth’s motion for summary judgment dismissing the cоmplaint and all cross claims against it.
Mikoll, J. P., Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the order is modified, on the law, without cоsts, by reversing so much thereof as denied the motion by defendant Wormuth Brothers Foundry, Inc. for summary judgment dismissing the complaint and all cross claims against it; mоtion granted to that extent, summary judgment awarded to said defendant and the complaint and all cross claims are dismissed against it; and, as so mоdified, affirmed.
Notes
. Notably, plaintiffs own examination before trial testimony on this issue was inconclusive. Although plaintiff conceded that he never told Roeben that he thought that his heart attack was work related, he insisted that he never informed any of Wormuth’s personnel that his heart attack wаs not work related.
. Although tortious interference with contract is a recognized tort in this State, such interference must be intentional, as opposed to merely negligent (see, Alvord & Swift v Muller Constr. Co.,