Walls v. Krasdale Foods, Inc.

Appellate Division of the Supreme Court of New York

Walls v. Krasdale Foods, Inc.

266 A.D.2d 5, 697 N.Y.S.2d 612, 1999 N.Y. App. Div. LEXIS 11154

Appellate Division of the Supreme Court of the State of New York·Decided November 4, 1999·Published·Cited by 1 cases

Opinion

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 5, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly determined that plaintiffs injuries were not attributable to defendant’s conduct but to the intervening and superceding act of an unknown assailant (see, Harris v New York City Hous. Auth., 187 AD2d 362). Nor, even if proven, would plaintiffs status as a special employee of defendant have given rise to a duty on defendant’s part to protect him from the acts of a third party, such as his assailant, beyond defendant’s authority and control (see, Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8). Moreover, plaintiffs receipt of workers’ compensation benefits would, in any event, require dismissal of the complaint against the special employer (Thompson v Grumman Aerospace Corp., 78 NY2d 553; Maldonado v Canac Intl., 258 AD2d 415). Concur— Ellerin, P. J., Williams, Wallach, Buckley and Friedman, JJ.

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—Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 5, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly determined that plaintiffs injuries were not attributable to defendant’s conduct but to the intervening and superceding act of an unknown assailant (see, Harris v New York City Hous. Auth., 187 AD2d 362). Nor, even if proven, would plaintiffs status as a special employee of defendant have given rise to a duty on defendant’s part to protect him from the acts of a third party, such as his assailant, beyond defendant’s authority and control (see, Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8). Moreover, plaintiffs receipt of workers’ compensation benefits would, in any event, require dismissal of the complaint against the special employer (Thompson v Grumman Aerospace Corp., 78 NY2d 553; Maldonado v Canac Intl., 258 AD2d 415). Concur— Ellerin, P. J., Williams, Wallach, Buckley and Friedman, JJ.

Walls v. Krasdale Foods, Inc., 266 A.D.2d 5, 697 N.Y.S.2d 612, 1999 N.Y. App. Div. LEXIS 11154 (N.Y. Ct. App. 1999).

Pincite

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Opinion

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