Concepcion v. Diamond

224 A.D.2d 189, 637 N.Y.S.2d 135, 1996 N.Y. App. Div. LEXIS 782

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1996
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 19, 1995, which, inter alia granted defendant’s motion to dismiss the complaint, unanimously affirmed, without costs.

As the president of the corporation that managed the apartment building where plaintiff fell and employed him as a porter, defendant owed plaintiff a duty of implementing the measures that would satisfy the duty that defendant owed plaintiff, as owner of the building, of providing a safe place to work. Defendant’s duty toward plaintiff as a coemployee being indistinguishable from his duty toward him as a property owner, the action is barred by the exclusivity provision for co-employees in Workers’ Compensation Law § 29 (6) (Heritage v Van Patten, 59 NY2d 1017; compare, Cusano v Staff, 191 AD2d 918 [defendant not immune from suit where his control over the accident site was only as the owner of the property, and not at all as the plaintiff’s coemployee]). Concur — Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Mazzarelli, JJ.