McNally v. Posterloid Corp.

Appellate Division of the Supreme Court of New York

McNally v. Posterloid Corp.

15 A.D.3d 456, 789 N.Y.S.2d 445, 2005 N.Y. App. Div. LEXIS 1638

Appellate Division of the Supreme Court of the State of New York·Decided February 14, 2005·Published·Cited by 1 cases

Opinion

[457]*457In an action, inter alia, to recover damages, in effect, for negligence, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated July 31, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

“While an intentional tort may give rise to a cause of action outside the ambit of the Workers’ Compensation Law, the complaint must allege ‘an intentional or deliberate act by the employer directed at causing harm to this particular employee’ ” (Fucile v Grand Union Co., 270 AD2d 227, 228 [2000], quoting Mylroie v GAF Corp., 81 AD2d 994, 995 [1981], affd 55 NY2d 893 [1982]; see Nash v Oberman, 117 AD2d 724, 725 [1986]). The plaintiff’s allegations failed to establish the elements of an intentional tort so as to fall under this exception to the exclusivity provision of Workers’ Compensation Law § 29 (see Workers’ Compensation Law §§ 11, 29 [6]; Edgarian v Boxart, Inc., 237 AD2d 484 [1997]; Gagliardi v Trapp, 221 AD2d 315, 316 [1995]; Nash v Oberman, supra).

The plaintiffs remaining contentions are without merit.

Thus, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Florio, J.R, Schmidt, Rivera and Lifson, JJ, concur.

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[457]*457In an action, inter alia, to recover damages, in effect, for negligence, the plaintiff appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated July 31, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

“While an intentional tort may give rise to a cause of action outside the ambit of the Workers’ Compensation Law, the complaint must allege ‘an intentional or deliberate act by the employer directed at causing harm to this particular employee’ ” (Fucile v Grand Union Co., 270 AD2d 227, 228 [2000], quoting Mylroie v GAF Corp., 81 AD2d 994, 995 [1981], affd 55 NY2d 893 [1982]; see Nash v Oberman, 117 AD2d 724, 725 [1986]). The plaintiff’s allegations failed to establish the elements of an intentional tort so as to fall under this exception to the exclusivity provision of Workers’ Compensation Law § 29 (see Workers’ Compensation Law §§ 11, 29 [6]; Edgarian v Boxart, Inc., 237 AD2d 484 [1997]; Gagliardi v Trapp, 221 AD2d 315, 316 [1995]; Nash v Oberman, supra).

The plaintiffs remaining contentions are without merit.

Thus, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. Florio, J.R, Schmidt, Rivera and Lifson, JJ, concur.

McNally v. Posterloid Corp., 15 A.D.3d 456, 789 N.Y.S.2d 445, 2005 N.Y. App. Div. LEXIS 1638 (N.Y. Ct. App. 2005).

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