[*1]
Carman v Abter
2004 NY Slip Op 51536(U)
Decided on October 26, 2004
Supreme Court, New York County
Bransten, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 26, 2004
Supreme Court, New York County


ELLA CARMAN, Plaintiff,

against

ELFATIH ISMAIL ABTER, CHAN MA and LIFE CARE DIALYSIS CENTER, INC., Defendants.




590512/03

Eileen Bransten, J.

Pursuant to CPLR 2221, Walter Wasser, M.D. and Adele Wasser ("the Wassers") move for reargument of their motion for summary judgment, which was denied.

Background

Ella Carman ("Ms. Carman") worked as a full-time hemodialysis nurse at Life Care Dialysis Center, Inc. ("Life Care"). On March 5, 1996, while drawing blood from a patient known to be infected with HIV and Hepatitis C, she stuck herself with the needle. Due to the risk of exposure to the diseases, Ms. Carman was examined by Dr. Chan Ma, an employee of Life Care, who contacted Dr. Elfatih Ismail Abter ("Dr. Abter"), an infectious disease specialist who had an arrangement to consult on certain patients at Life Care. Dr. Abter tended to Ms. Carman on the afternoon of March 5, 1996. He prescribed medications for her and she underwent a blood test for HIV. Although the March 5, 1996 test and a subsequent April 1996 test were negative for HIV, on July 9, 1996, Ms. Carman tested positive.

Ms. Carman applied for workers' compensation benefits. The Workers' Compensation Board determined that she was permanently partially disabled and awarded her $1,500 monthly.

In June 1998, Ms. Carman commenced suit against Life Care, Dr. Ma and Dr. Abter. The [*2]action was dismissed in its entirety by the trial judge originally assigned to this case. After extended motion practice, in December 2002, the Appellate Division, First Department concluded that dismissal as against Life Care and Dr. Ma was proper because claims against those defendants were barred by the Workers' Compensation Law. See, Carman v. Abter, 300 AD2d 160 (1st Dep't 2002). The Appellate Division further held, however, that the action against Dr. Abter was improperly dismissed as Dr. Abter was not an employee of Life Care and not a fellow-employee of Ms. Carman. Id.

In May 2003, Dr. Abter commenced a third-party action, seeking indemnification and contribution against Life Care and the Wassers, who allegedly oversee the administration of Life Care and are shareholders as well as officers of the corporation. The third-party complaint states that under "the current state of medical care, barring some personal genetic immunity to the known and common effects of HIV, and/or an intervening illness or trauma, it is likely, if not inevitable, that [Ms. Carman], as a carrier of HIV, will die in the future. As such, [she] has suffered a grave injury within the meaning of the Workers' Compensation Law, Section 11."Aff. Supp, Ex. I.

In May 2004, the Wassers sought summary judgment dismissal of the third-party complaint. The Wassers argued that because Ms. Carman did not suffer a "grave injury" a third-party action against them was barred by Workers' Compensation Law § 11, which provides that:

"An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a 'grave injury'" (emphasis added by this Court).

In response to that argument, Dr. Abter argued, among other things, that Workers' Compensation Law § 11, by its terms, applies only to an employer and not to co-employees.

In reply, the Wassers argued that the Workers' Compensation Law barred any action against them. The Wassers quoted the following language in Workers' Compensation Law § 29(6):

"The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in the case of death his or her dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ * * * ."


See, Reply Affirmation in Support of (Underlying) Motion for Summary Judgment ("Summary Judgment Reply"), at ¶ 19. The Wassers next stated that in "the instant matter, the plaintiff [Ella Carman] suffered her injury during her course of employment as a nurse at Life Care Dialysis Center, Inc. * * * and then promptly filed and was awarded Workers' Compensation against Life Care, as a result. Accordingly, regardless of whether this Court finds that [the Wassers] were the plaintiff's employer or her co-employees, this matter must be dismissed against them." Id. In support of that statement, the Wassers the cited several inapposite cases, see, Decision and Order dated August 30, 2004 ("August 2004 Decision"), at 9, all of which discussed well-settled law establishing that Workers' Compensation Law § 29(6) precludes an employee from suing his employer and co-employees. None of those cases, however, involved third-party claims or Workers' Compensation Law § 11. Finally, the Wassers urged that "it is clear that the limitation of third-party actions under [*3]§ 11 of the Workers' Compensation Law has been made applicable to fellow employees and thus, third-party plaintiff [Dr. Abter] may not maintain an action against [the Wassers] in any capacity, whether they are determined to be an employer or co-employee of the plaintiff." In support of that statement the Wassers broadly cited "Commentary, McKinney's § 29(6) WCL."[FN1] These were the sole arguments raised by the Wassers in support of their motion for summary judgment. Importantly, not once did the Wassers bring to the Court's attention any other language contained in Workers' Compensation Law § 29(6) or any supplementary practice commentaries.

In a Decision and Order dated August 30, 2004, based on the Wassers' submissions, this Court denied their motion for summary judgment.[FN2] The Court explained that the Wassers bore the burden of establishing entitlement to judgment as a matter of law and that they failed to demonstrate that Workers' Compensation Law § 11 applies to third-party actions against co-employees. August 2004 Decision, at 9. The Wassers demonstrated that pursuant to Workers' Compensation Law § 29(6), an employee could not bring an action against a co-employee but did not clearly set forth any authority supporting the proposition that the statute applied to third-party claims as well.

Now the Wassers seek reargument. For the very first time, they point out to the Court that Workers' Compensation Law § 29(6) explicitly states that:

"The limitation of liability of an employer set forth in section eleven of this article * * * shall be applicable to another in the same employ."


The Wassers did not quote that very important language in their summary judgment motion or in reply to Dr. Abter's arguments in opposition to their motion. Nor did the Wassers point out then what they point out now: that recent supplementary practice commentaries to Workers' Compensation Law § 11 (contained in the pocket-part supplement to McKinney's) state that:
"any action against a third party for injuries which occurred on and after September 10, 1996 to an employee, which are not considered 'grave,' may not be the basis for the third party impleading of the employer for contribution or indemnity if the employer is liable to the injured employee for workers' compensation benefits. This has also been made applicable to fellow employees by an amendment to § 29(6)."[FN3]


Minkowitz, Supp. Practice Commentaries, McKinney's Cons Laws of NY, Book 64, Workers' Compensation Law § 11, 2004 Pocket Part, at 80 (emphasis added).

In further support of their motion for reargument, the Wassers cite—for the very first time—Hynes v. Start Elevator, Inc., 2 AD3d 178 (1st Dep't 2003). In Hynes, the Appellate Division unambiguously concluded that third-party indemnification and contribution causes of action asserted against a plaintiff's co-employee were barred by the Workers' Compensation Law.

In opposition to the motion for reargument, Dr. Abter does not once address the newly-cited language in Workers' Compensation Law § 29(6). Instead, Dr. Abter urges that:

"It is immediately apparent that the sole basis for the reargument motion is that the Wassers have subsequently stumbled upon a case, Hynes v. Start Elevator, Inc., * * * that they did not cite in their papers on the motion despite the fact that it had been decided before their motion was made. This is not a ground for reargument."


Affirmation in Opposition to Reargument Motion by Third-Party Defendants Wasser, at ¶ 2.

In Reply, the Wassers do not offer any explanation whatsoever as to why the language from Workers' Compensation Law § 29(6) that they now so heavily rely on is nowhere to be found in their underlying submissions. Nor do they explain their belated citation to the supplementary practice commentaries and Haynes v. Start Elevator, Inc.

Analysis

CPLR 2221 provides that a motion for reargument "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matter of fact not offered on the prior motion." The motion is addressed "to the discretion of the court" and is "designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Foley v. Roche, 68 AD2d 558 (1st Dep't 1979).

In Mayer v. National Arts Club, 192 AD2d 863 (3d Dep't 1993), the Appellate Division explained that:

"A motion for leave to reargue pursuant to CPLR 2221 * * * may be granted only upon a showing that the court overlooked or misapprehended the facts or the law, or for some reason mistakenly arrived at its earlier decision. The motion is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted."




In their motion for summary judgment, not once did the Wassers' counsel set forth the language in Workers' Compensation Law § 29(6), which unambiguously states that "the limitation of liability of an employer set forth in section eleven of this article of this article * * * shall be [*4]applicable to another in the same employ."[FN4] Nor did the Wassers' attorney cite any other law conclusively establishing the correctness of their position. This Court is responsible for deciding hundreds of motions a year and cannot be expected to delve further than the movant and address matters that the movant never squarely sets before it in advancing its position. This is particularly so in the context of summary judgment—a drastic remedy—where the movant shoulders the heavy burden of establishing entitlement to judgment as a matter of law. See, Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978); Sauzo v. Weiss, 2004 WL 2222835, ___ AD3d ___ (1st Dep't 2004).

In their motion for summary judgment, the Wassers overlooked critical language in the Workers' Compensation law that definitively established their entitlement to dismissal of the third-party action. This oversight is the reason that the Court arrived at its earlier decision. Now, on reargument, counsel for the Wassers asks this Court to rectify the mistake. The Wassers, for the first time, set forth statutory language and legal precedent establishing their entitlement to judgment as a matter of law.

In the interests of justice the Court grants reargument, and on reargument, grants the Wassers' motion for summary judgment. The Court strongly discourages sloppy practice and does not lightly allow the Wassers to place before the court legal authority, which though readily available, was not clearly set forth in their motion papers. Had the arguments been made earlier, the Court would have avoided revisiting the matter now and Dr. Abter would not have had to respond to yet another motion. In the end, however, this Court cannot ignore the Legislature's mandate that absent "grave injury" third-party actions against a co-employee are precluded. Workers' Compensation Law § 29(6). Accordingly, the Court will dismiss the third-party action in its entirety.

Accordingly, it is

ORDERED that the motion to reargue is granted, and upon reargument, the third-party action is dismissed as against the Wassers; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This Constitutes the Decision and Order of the Court.

Dated: New York, New York

October 26, 2004

E N T E R

Hon. Eileen Bransten

Footnotes


Footnote 1: The Practice Commentaries in the main volume of McKinney's Workers' Compensation Law § 29(6) simply sets forth that "An employee cannot sue his employer or a fellow employee for an accidental injury which arose out of and in the course of the employment. This is prohibited by the exclusive remedy doctrine (see §§ 11 and 29(6) WCL)" (emphasis added).

Footnote 2: Life Care also moved for summary judgment dismissal of the third-party complaint. This Court granted its motion because Life Care established the absence of any "grave injury" and that as Ms. Carman's "employer," it was entitled to dismissal of the action.

Footnote 3: Based on a Court of Appeals' determination, it appears that the Supplementary Practice Commentaries erroneously focuses on the date of the injury as opposed to the date the action was commenced. See, Majewski v. Broadalbin-Perth Central School Dist., 91 NY2d 577, 590 (1998) ("irrespective of the date of the accident, a prospective application of the subject legislation to actions by employees for on-the-job injuries against third parties filed after the effective date of the relevant provisions [September 10, 1996] is eminently consistent with the overall and specific legislative goals behind passage of the Act").

Footnote 4: Mysteriously, this language is not contained within the text of Workers' Compensation Law § 11, which by its terms applies to an "employer."