Tambascio v. Gioffre

Appellate Division of the Supreme Court of New York

Tambascio v. Gioffre

27 A.D.2d 940, 278 N.Y.S.2d 663, 1967 N.Y. App. Div. LEXIS 4451

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

DecidedApril 10, 1967

StatusPublished

This text of 27 A.D.2d 940 (Tambascio v. Gioffre) 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.

Bluebook

Tambascio v. Gioffre, 27 A.D.2d 940, 278 N.Y.S.2d 663, 1967 N.Y. App. Div. LEXIS 4451 (N.Y. Ct. App. 1967).

Pincite

Opinion

Order of the Supreme Court, Westchester County, dated November 18, 1966, which granted plaintiffs’ motion to dismiss defendant E. J. Korvette, Inc.’s defense asserting workmen’s [941]*941compensation as plaintiffs’ exclusive remedy as to the first and fourth causes of action, reversed, with $10 costs and disbursements, and motion denied, without costs. Plaintiff Margaret Tambaseio, an employee of defendant Korvette, sues in negligence to recover damages for personal injuries sustained by her when an automobile driven by her husband, in which she was a passenger, collided with another automobile driven by defendant Gioffre (first cause). The husband inter alia is seeking to recover damages for loss of society, etc., (fourth cause). Neither the husband nor defendant Gioffre was a Korvette employee. The collision occurred in a parking lot used by the general public patronizing the stores in the shopping center in which Korvette’s store is located, as well as by Korvette’s employees; it occurred after Mrs. Tambaseio had finished her work in Korvette’s store, had checked out, had left the store building and had entered her husband’s car to be driven home. Inter alia, the complaint alleged that defendant Korvette improperly designed and maintained the parking lot. Korvette’s answer pleaded as a defense that workmen’s compensation was plaintiff’s exclusive remedy against Korvette upon the first and fourth causes. On plaintiff’s motion under CPLR 3211 (subd. [b]), Special Term struck out that defense. In our opinion this was error. Determination of the question whether Mrs. Tambaseio was or was not in the course of her employment at the time of the accident should not have been made on the sparse record before us, but should instead have been deferred for a full development of the facts at trial (cf. Matter of Rosenwasser v. Lanes, Lake Success, 9 A D 2d 1001; Matter of Berry v. B. Gertz, Inc., 21 A D 2d 708; Matter of Evans v. J. W. Mays, Inc., 25 A D 2d 597, mot. for lv. to app. den. 17 N Y 2d 423). Hence, the defense should not have been dismissed. Ughetta, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

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Order of the Supreme Court, Westchester County, dated November 18, 1966, which granted plaintiffs’ motion to dismiss defendant E. J. Korvette, Inc.’s defense asserting workmen’s [941]*941compensation as plaintiffs’ exclusive remedy as to the first and fourth causes of action, reversed, with $10 costs and disbursements, and motion denied, without costs. Plaintiff Margaret Tambaseio, an employee of defendant Korvette, sues in negligence to recover damages for personal injuries sustained by her when an automobile driven by her husband, in which she was a passenger, collided with another automobile driven by defendant Gioffre (first cause). The husband inter alia is seeking to recover damages for loss of society, etc., (fourth cause). Neither the husband nor defendant Gioffre was a Korvette employee. The collision occurred in a parking lot used by the general public patronizing the stores in the shopping center in which Korvette’s store is located, as well as by Korvette’s employees; it occurred after Mrs. Tambaseio had finished her work in Korvette’s store, had checked out, had left the store building and had entered her husband’s car to be driven home. Inter alia, the complaint alleged that defendant Korvette improperly designed and maintained the parking lot. Korvette’s answer pleaded as a defense that workmen’s compensation was plaintiff’s exclusive remedy against Korvette upon the first and fourth causes. On plaintiff’s motion under CPLR 3211 (subd. [b]), Special Term struck out that defense. In our opinion this was error. Determination of the question whether Mrs. Tambaseio was or was not in the course of her employment at the time of the accident should not have been made on the sparse record before us, but should instead have been deferred for a full development of the facts at trial (cf. Matter of Rosenwasser v. Lanes, Lake Success, 9 A D 2d 1001; Matter of Berry v. B. Gertz, Inc., 21 A D 2d 708; Matter of Evans v. J. W. Mays, Inc., 25 A D 2d 597, mot. for lv. to app. den. 17 N Y 2d 423). Hence, the defense should not have been dismissed. Ughetta, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

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Bluebook (online)

27 A.D.2d 940, 278 N.Y.S.2d 663, 1967 N.Y. App. Div. LEXIS 4451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tambascio-v-gioffre-nyappdiv-1967.