Haight v. Ordez

24 A.D.3d 508, 805 N.Y.S.2d 285

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Dutchess County (Sproat, J.), dated October 8, 2004, which, inter alia, granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against the defendant Epifanio Ordez as barred by the exclusivity provision of Workers’ Compensation Law § 29 (6).

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

The Supreme Court properly dismissed the plaintiff’s complaint insofar as asserted against the defendant Epifanio Ordez. The plaintiffs injuries, allegedly caused by the negligence of Ordez, his co-employee, occurred while the two were acting within the scope of their employment. Thus, the plaintiffs cause of action insofar as asserted against Ordez is barred by the exclusivity provision of the Workers’ Compensation Law (see Workers’ Compensation Law § 29 [6]; Majlinger v Cassino Contr. Corp., 25 AD3d 14 [2005]; Macchirole v Giamboi, 97 NY2d 147 [2001]; Near v Wagner Pool Co., 15 AD3d 551 [2005]).

The plaintiff’s remaining contentions are without merit. Florio, J.P., H. Miller, Spolzino and Dillon, JJ., concur.