| Kruger v EMFT, LLC |
| 2011 NY Slip Op 06369 [87 AD3d 717] |
| August 30, 2011 |
| Appellate Division, Second Department |
| Robert Kruger, Esq., as Guardian of the Property of Javier Tacuri,Appellant, v EMFT, LLC, et al., Respondents. |
—[*1] Marshall Conway Wright & Bradley, P.C. (Gannon, Lawrence & Rosenfarb, New York,N.Y. [Lisa L. Gokhulsingh], of counsel), for respondents EMFT, LLC, Eshagh Moezinia FamilyTrust, Cherechian Trading Co., Inc., Michael Moezina, and Eshagh Moezina, also known asIsaac Moezina. Abraham, Lerner & Arnold, LLP, New York, N.Y. (Frank P. Winston of counsel), forrespondents R. Moezinia's Contracting Corp., Bridge Street Contracting, Inc., Robert Moezina,and Santiago Aurapina.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Martin, J.),dated April 7, 2010, as denied those branches of his separate cross motions which were for leaveto amend the complaint to add a cause of action to recover damages for an intentional breach of avoluntarily assumed duty of care and a cause of action to recover damages for negligent inflictionof emotional distress, and for leave to amend the complaint to add a cause of action to recoverdamages for battery, respectively.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the plaintiff's cross motions which were for leave to amend the complaint toadd causes of action for an intentional breach of a voluntarily assumed duty of care and battery,and substituting therefor a provision granting those branches of the cross motions; as somodified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffpayable by the respondents appearing separately and filing separate briefs.
On November 24, 2008, Javier Tacuri (hereinafter the plaintiff) allegedly was injured whenhe fell from an elevation while working on a construction project at 365 Broadway in Manhattan(hereinafter the subject premises). At the time of the occurrence, he was employed by thedefendant Bridge Street Contracting, Inc., of which the defendant Robert Moezina was presidentand the defendant Santiago Aurapina was an employee (hereinafter collectively the Bridgedefendants). The defendant EMFT, LLC (hereinafter EMFT), owned the subject premises. Thedefendant Michael Moezina was a member and trustee of EMFT. After the occurrence, theplaintiff received workers' compensation benefits through his employer's coverage. In February2009, he [*2]commenced this action.
The Bridge defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against them on the basis of the exclusivity provisions of Workers'Compensation Law §§ 11 and 29 (6). The defendants EMFT, Eshagh MoeziniaFamily Trust, Cherechian Trading Co., Michael Moezina, and Eshagh Moezina, also known asIsaac Moezina (hereinafter collectively the EMFT defendants), cross-moved to dismiss the causeof action to recover damages for failure to provide emergency care and the punitive damagesclaims insofar as asserted against them. The plaintiff cross-moved pursuant to CPLR 3025 (b) forleave to amend the complaint to add causes of action against Robert Moezina, Michael Moezina,and Aurapina to recover damages for, inter alia, intentional breach of the voluntarily assumedduty of care, negligent infliction of emotional distress, assault, and intentional infliction ofemotional distress.
In essence, the plaintiff alleges that, after he fell, a supervisor had directed workers toawaken him from unconsciousness by throwing buckets of cold water on him and not to take himto the hospital because he was an undocumented worker, presumably employed illegally by theBridge defendants. The plaintiff further claims that he sustained traumatic brain injury, cognitivedefects, and mild cardiac damage as a result of the Bridge defendants taking him home instead ofto the hospital after having called an ambulance, which occasioned a 2½ hour delay inreceiving medical treatment for the injuries sustained. By separate cross motion, the plaintiffsought leave to further amend the complaint to add a cause of action against all the defendants torecover damages for civil battery. In the order appealed from, the Supreme Court denied theBridge defendants' motion and the EMFT defendants' cross motion, as well as the plaintiff's twocross motions for leave to amend the complaint.
Leave to amend a pleading pursuant to CPLR 3025 (b) should be freely granted unless theproposed amendment is palpably insufficient or patently devoid of merit, or unless prejudice orsurprise to the opposing party results directly from the delay in seeking leave to amend(see CPLR 3025 [b]; Lucido vMancuso, 49 AD3d 220, 225-229 [2008]; Buckholz v Maple Garden Apts., LLC, 38 AD3d 584, 584 [2007]).
"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" (Pereira v St. Joseph's Cemetery, 54AD3d 835, 836 [2008]). "While an intentional tort may give rise to a cause of action outsidethe ambit of the Workers' Compensation Law, the complaint must allege 'an intentional ordeliberate act by the employer directed at causing harm to this particular employee' " (Miller v Huntington Hosp., 15 AD3d548, 549 [2005] [some internal quotation marks omitted], quoting Fucile v Grand UnionCo., 270 AD2d 227, 228 [2000]). Here, accepting as true the factual averments of theproposed amendments to the complaint, the plaintiff adequately pleaded legally cognizablecauses of action based upon the intentional tort of battery and, as pleaded, an intentional breachof a voluntarily assumed duty of care to provide medical care (see Orzechowski vWarner-Lambert Co., 92 AD2d 110, 112 [1983]; Miller v Huntington Hosp., 15AD3d at 548-549).
The Supreme Court properly denied that branch of the plaintiff's first cross motion whichwas for leave to add a cause of action to recover damages for the negligent infliction ofemotional distress, as such a claim, based on negligence, is barred by the Workers' CompensationLaw and is, thus, patently devoid of merit (see Miller v Huntington Hosp., 15 AD3d at550; Gagliardi v Trapp, 221 AD2d 315, 316 [1995]).
The parties' remaining contentions either are without merit or have been rendered academicby our determination. Dillon, J.P., Covello, Chambers and Roman, JJ., concur.