| Pereira v St. Joseph's Cemetery |
| 2008 NY Slip Op 06974 [54 AD3d 835] |
| September 16, 2008 |
| Appellate Division, Second Department |
| Jose Pereira, Respondent, v St. Joseph's Cemetery et al.,Appellants. |
—[*1] David K. Lieb, P.C., Center Moriches, N.Y. (Andrew M. Lieb of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered September 25, 2007, whichdenied their motion to dismiss the complaint for failure to state a cause of action pursuant toCPLR 3211 (a) (7).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion todismiss the complaint is granted.
The plaintiff was employed as a caretaker by the defendant St. Joseph's Cemetery (hereinafterthe Cemetery). He alleges that fellow employees intentionally caused him to trip and fall and thathe was thereby injured. The plaintiff commenced this lawsuit against the Cemetery, St. Joseph'sChurch (hereinafter the Church), and the Archdiocese of New York (hereinafter theArchdiocese). The complaint alleged, inter alia, that the Church and the Archdiocese "owned,leased, occupied, possessed, operated, maintained and controlled" the Cemetery, and that thedefendants were negligent in failing to take any action against the plaintiff's fellow employees toprevent their conduct "despite being informed of [their] prior tortious conduct against theplaintiff." The defendants moved to dismiss the complaint arguing, inter alia, that the Workers'Compensation Law precluded the plaintiff's lawsuit. The Supreme Court denied the motion. Wereverse.
The Workers' Compensation Law provides the exclusive remedy for an employee who seeksdamages for unintentional injuries which he or she incurs in the course of employment (seeWorkers' Compensation Law §§ 10, 11, 29; Reich v Manhattan Boiler &Equip. Corp., 91 NY2d 772 [1998]).[*2]"While anintentional 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 employerdirected at causing harm to this particular employee' " (Fucile v Grand Union Co., 270AD2d 227, 228 [2000], quoting Mylroie v GAF Corp., 81 AD2d 994, 995 [1981],affd 55 NY2d 893 [1982]). " 'In order to constitute an intentional tort, the conduct mustbe engaged in with the desire to bring about the consequences of the act; a mere knowledge andappreciation of a risk is not the same as the intent to cause injury' " (Acevedo v ConsolidatedEdison Co. of N.Y., 189 AD2d 497, 501 [1993], quoting Finch v Swingly, 42 AD2d1035, 1035 [1973]; see Miller vHuntington Hosp., 15 AD3d 548 [2005]). Moreover, "[a]llegations that the employerexposed the employee to a substantial risk of injury have been held insufficient to circumvent theexclusivity of the remedy provided by the Workers' Compensation Law" (Gagliardi v Trapp,221 AD2d 315, 316 [1995] [citation omitted]).
In the case at bar, even "accepting as true the factual averments of the complaint andaccording the plaintiff the benefits of all favorable inferences which may be drawn therefrom"(Rochdale Vil. v Zimmerman, 2AD3d 827 [2003] [internal quotation marks omitted]), the plaintiff failed to state a legallycognizable cause of action against the Cemetery based upon an intentional tort. At most, thecomplaint makes claims which sound in negligent supervision. Accordingly, the plaintiff'sallegations do not establish the elements of an intentional tort on the part of the Cemetery so as tofall under the exception to the exclusivity provision of Workers' Compensation Law § 29(see McNally v Posterloid Corp., 15AD3d 456 [2005]; Gagliardi v Trapp, 221 AD2d 315, 316 [1995]; Nash vOberman, 117 AD2d 724, 725 [1986]; Crespi v Ihrig, 99 AD2d 717 [1984],affd 63 NY2d 716 [1984]). Consequently, the Supreme Court should have dismissed thecomplaint insofar as asserted against the Cemetery.
Inasmuch as the complaint fails to state a cause of action against the Cemetery, it isaxiomatic that the Church and the Archdiocese cannot be held liable under any theory ofvicarious liability. A claim of vicarious liability cannot stand when "there is no primary liabilityupon which such a claim of vicarious liability might rest" (Karaduman v Newsday, Inc.,51 NY2d 531, 546 [1980]; seeRojas v Feliz, 24 AD3d 652 [2005]). Nor does the complaint set forth any other basisupon which the Church or the Archdiocese could be held liable in this case. Therefore, thedefendants' motion to dismiss the complaint in its entirety should have been granted (see Pfeiffer v General Elec. Co., 7AD3d 598 [2004]). Spolzino, J.P., Lifson, Dickerson and Chambers, JJ., concur.