This is an action for damages for personal injuries arising out of four-car chain reaction automobile accident which occurred on May 3, 2010, on Baychester Avenue near its intersection with Palmer Avenue, Bronx County, New York. The plaintiff, Feng Gao, [*2]was an employee of the defendant Kanglida International Inc. whose principal is defendant, Jing Hong Li. On the date of the accident, the plaintiff was making a delivery for his employer and was operating a delivery van owned by the defendants. In his affidavit dated April 5, 2011, the plaintiff states that when he exited the New England Thruway onto Baychester Avenue heading northbound, he observed that the cars in front of him were stopped at a red traffic light. He states that although he tried to brake, the brakes did not work and he struck the vehicle in front of him in the rear starting a chain reaction involving the three cars in front of him. He states that as a result of the accident he sustained a chest contusion, fractured ribs and injuries to his knees, neck and back.

According to the affidavit of Ms. Karen Merriam, a Workers' Compensation Claim representative for Travelers Casualty & Surety Company, on May 4, 2010, one day after the accident, Travelers received a notice of injury from Kanglida. She asserts that a hearing was held at the Workers' Compensation Board on November 9, 2010. In a decision by Judge Anthony Golden, dated November 15, 2010, the plaintiff was awarded a total lump sum of $5,653.40 for his 21 weeks of disability arising out of the accident in question. Counsel also submits an affidavit from Jing Hong Li, the plaintiff's employer attesting to the fact that the plaintiff accepted Workers' Compensation benefits from Travelers Casualty & Surety, the defendants' workers' compensation carrier.

In June 2010, the plaintiff commenced an action against his employer in the Small Claims Part of the Queens County Civil Court to recover damages for personal injuries. After a hearing held on August 2, 2010, the arbitrator awarded judgment in favor of the defendant Kanglida on the ground that the plaintiff received workers' compensation benefits for his claim.

The plaintiff commenced the within Supreme Court action by the filing of a summons and complaint on September 30, 2010. In his verified complaint, Gao states that on May 3, 2010, he was employed by the defendant as a delivery driver, operating a 1992 Isuzu van owned by the defendants. The plaintiff claims that prior to the date of the accident, "defendant Jing Hong Li and Kanglida International Inc. knew the above-mentioned 1992 Isuzu van had a defective brake vacuum pump, brake and other defective components." Plaintiff claims that Li admitted to the plaintiff that the vehicle's brakes were defective and the brakes would not inhibit motion unless the driver continuously pressed it. Plaintiff also contends in the complaint that in December 2008, a mechanic at 43 Auto Service Station had advised the defendants that the van's brakes needed major repair. Plaintiff contends that despite this advice, the defendants, "deliberately and [*3]intentionally failed to repair the known brake defects and placed their driver's safety and life at risk and danger." Plaintiff contends that the accident, in which he hit another driver in the rear, was caused by the van's inability to stop when he pressed on the brakes. Plaintiff claims that despite knowing the brakes were defective, the defendants required the plaintiff to make deliveries utilizing that van. Plaintiff asserts a cause of action for an unspecified "intentional tort" in failing to repair the van's brakes despite the advice of the mechanic and "making their driver operate an unsafe van." The complaint asserts that the action falls outside the Workers' Compensation Law because the injuries resulted from an intent to harm the plaintiff.

Defendant, Kanglida International Inc., served a verified answer dated November 30, 2010, containing twelve separate affirmative defenses including, assumption of risk, failure to state a cause of action, that the cause of action is barred by the Workers' Compensation Law and that the action is barred by res judicata and collateral estoppel.

Defendant Kanglida now moves for an order pursuant to CPLR 3211(a)(7) and 3211(a)(5) dismissing the plaintiff's complaint in its entirety on the ground that the plaintiff was employed by the defendant on the date of the accident and was injured in the course of his employment. Counsel contends that as it has been established that the plaintiff elected to receive payment under the Workers' Compensation Law § 11 and accepted the award of the Board, he is now barred from suing his employer for damages arising out of the same accident.

Secondly, counsel contends that the plaintiff's action should be dismissed on the ground of res judicata as the plaintiff brought an action in Small Claims Court seeking the sum of $5,000.00 in damages for personal injuries arising out of the same accident and the action was dismissed after a hearing based upon the court's decision that the action was barred by the Workers' Compensation Law.

Plaintiff submits an affirmation in opposition claiming that the action is not barred by the Workers' Compensation Law as the complaint states a cause of action for an intentional tort which is an exception to the exclusive remedy provision of the Workers' Compensation Law. Counsel also contends that the Small Claims case was based upon the theory of the employer's negligence in not repairing the van rather than the allegation of an intentional tort.

In his affidavit in opposition to the motion, dated April 5, 2011, the plaintiff, Feng Gao, states that on May 3, 2010, the date of the accident, he was making deliveries for his employer and was operating an 1992 Isuzu van owned by the defendants. He states that when he exited the New England Thruway onto Baychester Avenue in the left lane heading northbound, "[I] tried [*4]to brake, but it did not work. I made four tries and the accident still happened." The plaintiff states that on his first day of work his employer, Jim Hong Li told him that he had to press the brakes several times before the van would stop, and despite that knowledge, Li required the plaintiff to make deliveries in the van knowing that it would cause a life-threatening situation." The plaintiff also states that after the accident he visited 43 Auto Service Inc., a vehicle repair shop in Flushing, NY, that he states had checked the van previously. He states that he was told by a technician, Mr. John Chen, that he had checked the vehicle in 2008 and found that the vehicle "might cause potential safety hazards." Plaintiff claims that Mr. Chen told Li to replace the braking vacuum pump, pneumatic braking system and braking block but "Mr. John Hong Li only replaced the braking block to save money." The plaintiff alleges that the defendants intentionally caused injury to him because they knew that the van's braking system was defective. He states that when he brought his action in Small Claims Court he did not claim that his injuries were the result of an intentional tort.

Plaintiff's counsel, Michelle Y. Tang, Esq., states that the motion to dismiss the complaint should be denied because the complaint sufficiently states a valid cause of action for an intentional tort in that it alleges that defendants owned the vehicle in question, that the defendants were aware of the defective condition of the brakes, that the defendant Li admitted to plaintiff that the brakes were defective, that a mechanic advised defendants that the brakes were defective, and the defendants intentionally chose not to repair the brakes and as such intentionally placed plaintiff's life at risk and danger. Counsel asserts that the complaint should not be dismissed because an injured employee can bring a common-law intentional tort action as an exception to the Workers' Compensation Law. Counsel contends that as defendant had knowledge of the defective condition and intentionally chose to ignore the warnings, he intentionally placed the plaintiff's life in danger.

In addition, counsel claims that res judicata does not bar plaintiff from raising a different cause of action on different facts. Counsel contends that in the Small Claims action the plaintiff did not claim that the case was based upon an intentional tort which is an exception to the Workers' Compensation Law.

In reply, the defendants contend that although an intentional tort is an exception to the exclusive remedy provision of the Workers' Compensation Law, here the complaint does not set forth a cognizable cause of action for an intentional tort, and moreover, the plaintiff's affidavit is based upon, speculation, conclusions and hearsay. Counsel also claims that even if the complaint states a cause of action for an [*5]intentional tort that it is still barred by res judicata as the Small Claims case was based upon the same set of facts as alleged in the instant action and the plaintiff is merely seeking to bring the instant action based upon a different legal theory.

Upon review of the defendants' motion, the plaintiff's opposition and the defendants' reply thereto, this court finds as follows:

There is no dispute that the plaintiff was injured in the course of his employment and that he applied for and was awarded Workers' Compensation Benefits for the time he missed from work as a result of the accident. Section 11 of the Workers' Compensation Law provides, in pertinent part that: "The liability of an employer ....shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, spouse, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death". Thus, the Workers' Compensation Law provides the exclusive remedy for an employee who seeks damages for unintentional injuries which he incurs in the course of employment (see Workers' Compensation Law §§ 10, 11, 29; Reich v Manhattan Boiler & Equip. Corp., 91 NY2d 772[1998]; Pereira v. St. Joseph's Cemetery, 54 AD3d 835 [2d Dept. 2008]).

The Courts have held however, that there is an exception to the exclusivity of the Workers' Compensation Law "where injury is sustained to an employee due to an intentional tort perpetrated by the employer or at the employer's direction" (Achieved v Consolidated Edison Co., 189 AD2d 497 [1st Dept. 1993] quoting Finch v Swingly, 42 AD2d 1035 [4th Dept. 1973]). For the exception to be applicable, the complaint must allege an intentional or deliberate act by the employer directed at causing harm to the particular employee (see Pereira v. St. Joseph's Cemetery, supra.; Fucile v Grand Union Co., 270 AD2d 227 [2d Dept. 2000]). "In order to constitute an intentional tort, the conduct must be engaged in with the desire to bring about the consequences of the act; a mere knowledge and appreciation of a risk is not the same as the intent to cause injury" (Achieved v Consolidated Edison Co. of NY, supra quoting Finch v Swingly, 42 AD2d 1035 [4th Dept. 1973]; also see Miller v Huntington Hosp., 15 AD3d 548 [2d Dept. 2005]). Allegations that the employer exposed the employee to a substantial risk of injury have been held insufficient to circumvent the exclusivity of the remedy provided by the Workers' Compensation Law" (Gagliardi v Trapp, 221 AD2d 315[2d Dept. 1995]). Thus, "gross negligence and/or reckless conduct on the part of an employer will not neutralize the exclusivity of the Worker's Compensation Law as would an intentional tort" (DePaola v. Albany Med. Coll., 40 AD3d 678 [2d Dept. 2007]). [*6]

This court finds that the plaintiff failed to state a legally cognizable cause of action against the defendants based upon an intentional tort.

The plaintiff's allegations in the case at bar do not rise to the level required to fall outside the ambit of Workers' Compensation Law. Firstly, the plaintiff's allegation that the defendants were aware that the brakes needed repairing was based upon a hearsay statement from a mechanic who did not submit an affidavit. Secondly, even accepting the allegations as true, the defendants' conduct amounted to gross negligence or reckless conduct. Although the complaint and the plaintiff's affidavit alleges that the defendant was aware that the brakes in the delivery van were defective and that defendants sent employees to make deliveries in that van, the complaint fails to contain sufficient facts to show that the defendant's failure to repair the brakes was a deliberate act undertaken to injure this plaintiff in particular. Allegations that an employer negligently exposed an employee to a substantial risk of injury have been held insufficient to circumvent the exclusivity of the remedy provided by the Workers Compensation Law (see Miller v Huntington Hosp.,15 AD3d 548 [2d dept. 2005]; Gagliardi v Trapp, 221 AD2d 315 [2d Dept. 1995]). Accepting the facts as alleged by the plaintiff as true, it is apparent that the defendants blatantly disregarded a substantial risk of harm to the plaintiff, however, the factual allegations are insufficient to show that the defendants' actions were intentionally designed to cause the plaintiff injury (see Blanchard v. Integrated Food Sys., 220 AD2d 895 [3rd Dept. 1995]; Ferguson v. Don Davis Auto World, Inc., 207 AD2d 991 [4th Dept. 1991][allegations that the employer intentionally failed to provide safe working conditions do not bring this case within the intentional injury exception to the exclusivity provisions of the Workers' Compensation Law]; Briggs v. Pymm Thermometer Corp., 147 ASD2d 433 [2d Dept. 1989]; Crespi v Ihrig, 99 AD2d 717 [1st Dept. 1984]; Orzechowski v Warner-Lambert Co., 92 AD2d 110 [2d Dept. 1983]).

As the Court finds that the plaintiff elected to receive Workers' Compensation benefits and as the plaintiff has not established an intentional tort on the part of defendant Kanglida International Inc., the complaint must be dismissed for failure to state a cause of action pursuant to CPLR 3211(a)(7).

In addition, the plaintiff previously brought an action against his employer in Small Claims Court for personal injuries arising out of the accident. The court dismissed the complaint after a hearing as barred by the Workers' Compensation Law. Plaintiff claims that he only argued the theory of the defendant's negligent conduct in Small Claims Court and not defendant's intentional actions. However, the courts have held that "the doctrine of res judicata, or claim preclusion, provides [*7]that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive in any subsequent action of the issues of fact and questions of law necessarily decided in the first action. Furthermore, pursuant to the doctrine, once a claim is brought to a final conclusion, all other claims arising out of the same "transaction" are barred, even if based upon different theories, or if seeking a different remedy" (Burch v. Trustees of Freeholders & Commonalty of Town of Southampton, 47 AD3d 654 [2d Dept. 2008]). Here, the Supreme Court action is barred by res judicata as the Small Claims action was based upon the same facts and transaction and the plaintiff had the opportunity at that time to raise the theory of an intentional tort as a defense to the exclusivity of the Workers' Compensation Law, but rather chose to only argue that the defendants were negligent (see Junk'n Doughnuts Inc. v. Department of Consumer Affairs of the City of New York, 49 AD3d 464 [1st Dept. 2008]; Fifty CPW Tenants Corp. v. Epstein, 16 AD3d 292 [1st Dept. 2005][res judicata bars not only claims that were actually litigated but also claims that could have been litigated in the prior action if they arose from the same transaction or series of transactions"]; Rand v Texaco, Inc., 305 AD2d 285 [1st Dept. 2003]; Troy v Goord, 300 AD2d 1086 [4th Dept. 2002]).

Accordingly, for all of the above stated reasons the motion by defendant Kanglida International Inc to dismiss the plaintiff's complaint against said defendant is granted pursuant to CPLR 3211(a)(7) and 3211(a)(5) for failure to state a cause of action and barred by res judicata and the Clerk is directed to enter judgment in favor of said defendant.

Dated: June 20, 2011

Long Island City, NY

_______________________

ROBERT J. MCDONALD

J.S.C.