Feitner v. Town of Smithtown

23 A.D.3d 431, 808 N.Y.S.2d 93

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Oliver, J.), dated January 13, 2005, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Although the defendants’ motion for summary judgment was technically premature since issue had not yet been joined (see CPLR 3212 [a]), under the particular facts of this case, where the plaintiff was clearly on notice that the motion was made pursuant to CPLR 3212, submitted opposition papers thereto, and “ ‘deliberately charter[ed] a summary judgment course,’ ” the Supreme Court properly entertained the motion (Hickey v Travelers Ins. Co., 158 AD2d 112, 114 [1990], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:12, at 21).

On the merits, the Supreme Court correctly granted the motion dismissing the complaint (see Workers’ Compensation Law § 29 [6]). The plaintiff and the defendant Thomas J. Karthaus were acting within the scope of their employment, as co-employees, at the time of the subject accident (see Macchirole v Giamboi, 97 NY2d 147, 150 [2001]; Roman v Ainechi, 15 AD3d 562 [2005]). Thus, workers’ compensation is the plaintiff’s exclusive remedy and she is barred from maintaining this action.

The plaintiffs remaining contentions are without merit. H. Miller, J.P., Krausman, Rivera and Dillon, JJ., concur.