Tompkins v. International Business Machines Corp.

Feb 9, 1998
Versions:247 A.D.2d 465
668 N.Y.S.2d 673
1998 N.Y. App. Div. LEXIS 1020

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Beisner, J.), entered November 1, 1996, as granted that branch of the defendant’s motion which was for summary judgment dismissing the amended complaint and denied the plaintiffs’ motion for leave to serve a second amended complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the *466defendant’s motion which was for summary judgment dismissing the amended complaint by which the plaintiffs sought to recover damages for the employment-related injuries of the plaintiff George Tompkins. The plaintiffs failed to meet their burden of showing that there was no coverage under the Workers’ Compensation Law. The plaintiffs’ allegation that the defendant’s negligence caused George Tompkins’ injuries by allowing him and other employees to be exposed to toxic and injurious chemicals in the course of their employment at the defendant’s East Fishkill facility does not bring them within the limited exceptions to the general rule that the Workers’ Compensation Law bars an employee from maintaining a common-law action to recover damages arising out of an employer’s negligence (see, Murray v City of New York, 43 NY2d 400; Rainey v Jefferson Vil. Condo No. 11 Assocs., 203 AD2d 544; Briggs v Pymm Thermometer Corp., 147 AD2d 433).

The Supreme Court also properly denied the plaintiffs’ motion to serve a second amended complaint since the allegations in their proposed second amended complaint were palpably insufficient as a matter of law (see, Briggs v Pymm Thermometer Corp., supra; see generally, Kaplansky v Kaplansky, 212 AD2d 667; Del Bourgo v 138 Sidelines Corp., 208 AD2d 795).

Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.