155 Misc. 2d 454 | N.Y. City Civ. Ct. | 1992
OPINION OF THE COURT
This is an action for damages for personal injury due to defendants’ alleged negligence and breach of the warranties of merchantability and fitness for use. The action was removed to this court by the Supreme Court, New York County, pursuant to CPLR 325 (d). The action was previously tried by a different Judge of this court and a jury, which resulted in a verdict for plaintiff in the amount of $1,165,000. The Appellate Term, First Department, reversed and remanded this action for a new trial on the ground that defendants’ affirma
Defendants now move for summary judgment based on their affirmative defense of workers’ compensation, and plaintiff cross-moves to strike that defense. The parties submit with this motion two stipulations of facts. There are no longer issues of fact pertaining to the defense of workers’ compensation, and thus the defense is ripe for adjudication.
Plaintiff was an employee of defendant Chase Manhattan Bank (Chase) on August 7, 1984. At that time, defendant Chase ran a pharmacy for its employees where plaintiff had a prescription filled. Defendant Winslow Seale (Scale) was the employee of defendant Chase at its pharmacy who filled the prescription. His acts and/or omissions in doing so were performed within the scope of his employment with defendant Chase. Plaintiff avers that her ingestion of the prescription caused her serious injuries. On the date of the filling of the prescription, defendant Chase had a workers’ compensation policy in full force and effect.
In addition to prescription items, defendant Chase’s store in which the pharmacy was located also sold other nonpharmaceutical items that typically are sold in drugstores. Employees of defendant Chase could purchase items at the store and pharmacy for themselves and members of their families. The store and pharmacy were also open for such purchases to employees of all tenants of the building and of contractors working in the building. The price of merchandise in the store and pharmacy was the same for employees of defendant Chase, of the building tenants and of the contractors working there. At the time of the prescription purchase by plaintiff, there were approximately 7,000 employees of defendant Chase employed in the building, and about 2,500 employees of tenants and of contractors working in the building.
The pharmacy was located at a building owned by defendant Chase at One Chase Manhattan Plaza, New York, New York, one level below the lobby, and the pharmacy was accessible by escalator or elevator. Defendant Chase posted security guards to prevent persons other than the above from shopping at the store and pharmacy, although the guards were not totally successful in preventing all others from reaching the store.
Defendants argue that, if plaintiff were entitled to receive
Under the facts here, plaintiff would not be eligible for workers’ compensation benefits. The pharmacy was not open
Therefore, defendants’ motion is denied. Plaintiff’s cross motion is granted to the extent of striking defendants’ third affirmative defense of workers’ compensation.