Cortez v. Horizons Investors Corp.

Appellate Division of the Supreme Court of New York

Cortez v. Horizons Investors Corp.

228 A.D.2d 372, 644 N.Y.2d 725, 644 N.Y.S.2d 725, 1996 N.Y. App. Div. LEXIS 7486

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1996

StatusPublished

Cited by1 cases

This text of 228 A.D.2d 372 (Cortez v. Horizons Investors Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cortez v. Horizons Investors Corp., 228 A.D.2d 372, 644 N.Y.2d 725, 644 N.Y.S.2d 725, 1996 N.Y. App. Div. LEXIS 7486 (N.Y. Ct. App. 1996).

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Opinion

"It has consistently been held that the immunity from civil liability under Workers’ Compensation Law § 29 (6) for a tort committed by the victim’s coemployee is limited to acts or omissions of the tortfeasor within the scope of his or her employment” (Cusano v Staff, 191 AD2d 918, 919; see also, Maines v Cronomer Val. Fire Dept. 50 NY2d 535).

In this case, defendant Benjamin Fernandez, as president of Bronx Manor Hotel Corp., was a coemployee of plaintiff, who was employed by that entity as a maintenance worker. However, there are questions of fact as to whether Fernandez was acting within the scope of his employment in assigning plaintiff to do yard work at Fernandez’s residence, which was owned by defendant Horizons Investors Corp. and leased to Fernandez. Indeed, the only support for the proposition that Fernandez was acting within the scope of his employment is his own statement that Bronx Manor Hotel Corp. maintained an "office” on the premises for which it "may have paid some rent”. Clearly, there is a question of fact as to whether this alleged office was such as to create any obligation by or benefit to the corporate employer in the maintenance of the property’s grounds (see, Russell v Gaines, 209 AD2d 939, lv denied App Div, 4th Dept. Feb. 3, 1995). Concur—Milonas, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.

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"It has consistently been held that the immunity from civil liability under Workers’ Compensation Law § 29 (6) for a tort committed by the victim’s coemployee is limited to acts or omissions of the tortfeasor within the scope of his or her employment” (Cusano v Staff, 191 AD2d 918, 919; see also, Maines v Cronomer Val. Fire Dept. 50 NY2d 535).

In this case, defendant Benjamin Fernandez, as president of Bronx Manor Hotel Corp., was a coemployee of plaintiff, who was employed by that entity as a maintenance worker. However, there are questions of fact as to whether Fernandez was acting within the scope of his employment in assigning plaintiff to do yard work at Fernandez’s residence, which was owned by defendant Horizons Investors Corp. and leased to Fernandez. Indeed, the only support for the proposition that Fernandez was acting within the scope of his employment is his own statement that Bronx Manor Hotel Corp. maintained an "office” on the premises for which it "may have paid some rent”. Clearly, there is a question of fact as to whether this alleged office was such as to create any obligation by or benefit to the corporate employer in the maintenance of the property’s grounds (see, Russell v Gaines, 209 AD2d 939, lv denied App Div, 4th Dept. Feb. 3, 1995). Concur—Milonas, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.

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Bluebook (online)

228 A.D.2d 372, 644 N.Y.2d 725, 644 N.Y.S.2d 725, 1996 N.Y. App. Div. LEXIS 7486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cortez-v-horizons-investors-corp-nyappdiv-1996.

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