O'Brien v. Ashley

Appellate Division of the Supreme Court of New York

O'Brien v. Ashley

202 A.D.2d 944, 609 N.Y.S.2d 460, 1994 N.Y. App. Div. LEXIS 3064

Appellate Division of the Supreme Court of the State of New York·Decided March 31, 1994·Published

Opinion

—Appeal from an order of the Supreme Court (Spain, J.), entered June 17, 1993 in Albany County, which denied defendants’ motion for summary judgment dismissing the complaint.

In this personal injury action involving employees of the New York State Division of Military and Naval Affairs, defendants sought summary judgment on the basis that plaintiffs’ claim is barred by the exclusivity provisions of Workers’ [945]*945Compensation Law §29 (6). In our view, Supreme Court correctly denied this motion. Defendants failed to demonstrate as a matter of law for purposes of this motion that plaintiff Palmira L. O’Brien’s status as a National Guard technician established that she was a special employee of the State. Supreme Court also aptly noted that plaintiffs’ papers in opposition raised other factual issues that must be resolved at trial.

Cardona, P. J., Mercure, White, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

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—Appeal from an order of the Supreme Court (Spain, J.), entered June 17, 1993 in Albany County, which denied defendants’ motion for summary judgment dismissing the complaint.

In this personal injury action involving employees of the New York State Division of Military and Naval Affairs, defendants sought summary judgment on the basis that plaintiffs’ claim is barred by the exclusivity provisions of Workers’ [945]*945Compensation Law §29 (6). In our view, Supreme Court correctly denied this motion. Defendants failed to demonstrate as a matter of law for purposes of this motion that plaintiff Palmira L. O’Brien’s status as a National Guard technician established that she was a special employee of the State. Supreme Court also aptly noted that plaintiffs’ papers in opposition raised other factual issues that must be resolved at trial.

Cardona, P. J., Mercure, White, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

O'Brien v. Ashley, 202 A.D.2d 944, 609 N.Y.S.2d 460, 1994 N.Y. App. Div. LEXIS 3064 (N.Y. Ct. App. 1994).

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