May an employee who has filed a workers’ compensation claim as a result of sexual harassment/assault that occurred in the workplace also sue their employer and co-worker who committed the acts of harassment?

§ 29. Remedies of employees; subrogation

[...]

6. The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in 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, the employer's insurer or any collective bargaining agent of the employer's employees or any employee, of such insurer or such collective bargaining agent (while acting within the scope of his or her employment). The limitation of liability of an employer set forth in section eleven of this article for the injury or death of an employee shall be applicable to another in the same employ, the employer's insurer, any collective bargaining agent of the employer's employees or any employee of the employer's insurer or such collective bargaining agent (while acting within the scope of his or her employment). [...]

Whether compensation is plaintiff's exclusive remedy turns on the interpretation of sections 19 and 20 of the Volunteer Firemen's Benefit Law and of related sections of the Workers' Compensation Law. Section 19 of the former law provides in relevant part that: "The benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman * * * for * * * injury * * * in the line of duty * * * as against * * * (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted" and section 20, which is entitled "Other remedies of volunteer firemen; subrogation," states that: "The provisions of section twenty-nine of the workmen's compensation law to the extent that such provisions are not inconsistent with the provisions of this chapter, shall be applicable as fully as if set forth in this chapter." Section 29 of the Workers' Compensation Law provides, so far as here relevant, in subdivision 1 that "If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee * * * may take such compensation and medical benefits and * * * pursue his remedy against such other," and in subdivision 6 that the right to compensation is the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ."

Viewed solely on the basis of the words used, section 29 of the Workers' Compensation Law, which turns on whether plaintiff and defendant were "in the same employ," gives a coworker greater protection than does section 19 of the firemen's law, which protects only a person acting "in furtherance of the duties or activities in relation to which" the injury resulted, for our decisions have long recognized that an employee may be within the course of employment (and thus in "the same employ") even though not acting strictly in furtherance of his duties or his employer's objectives (see, generally, 1A Larson, Workmen's Compensation Law, §§ 20-23). On its wording section 19 affords no basis for dismissal of the complaint, for a jury could find, there being evidence (both in the disciplining of defendant firemen and in testimony of individual witnesses that such initiation or hazing activities were not an accepted practice in the fire department) that in fact defendants were not acting "in furtherance of the duties or activities" in relation to which plaintiff's injuries resulted (Matter of Ognibene v. Rochester Mfg. Co., 298 N.Y. 85, 80 N.E.2d 749; see Matter of Heitz v. Ruppert, 218 N.Y. 148, 152-153, 112 N.E. 750; cf. 1A Larson, Workmen's Compensation Law, § 23.41). Likewise the disparate wording of the two laws would make section 29 of the Workers' Compensation Law inapplicable because section 20 of the firemen's law applies section 29's exclusivity provision only to the extent not inconsistent with the firemen's law. Nor would the referee's finding estop plaintiff collaterally, for the only finding required by subdivision 3 of section 3 and section 6 of the firemen's law, and indeed the only finding made, was that Maines had been injured "in line of duty."

We prefer not to predicate our ruling on the difference in wording between the two laws, however, because the Memorandum of the Joint Legislative Committee on Fire Laws which accompanied the bill which became the Volunteer Firemen's Benefit Law (N.Y.Legis.Doc., 1956, No. 45, reprinted at

Page 626

McKinney's Cons.Laws of N.Y., Book 63B, p. 17) contains language suggesting that section 19 was intended to follow the exclusivity rule of the Workers' Compensation Law (N.Y.Legis.Doc., 1956, No. 45, p. 26; McKinney's Cons.Laws of N.Y., Book 63B, p. 12, see, also, p. 29), a conclusion which is consistent with the result we reached in Pollini v. Fuller Rd. Fire Dept., 34 N.Y.2d 744, 357 N.Y.S.2d 502, 313 N.E.2d 793. 3 We leave the question open also because, though the word "employ" does not necessarily import employment for hire, it may be argued that section 19's "furtherance of the duties or activities" phrasing was simply the scrivener's effort to transpose "in the same employ" to a law relating to volunteers, and because, in final analysis, we conclude that even under the broader wording of the Workers' Compensation Law, defendants were not "in the same employ" as that phrase has been construed and, therefore, plaintiff is not barred from suing them.

[...]

In the instant case, defendants had so far departed from the "duties and activities" of their positions as volunteer firemen that a jury may find, the more so in light of defendants' suspensions and other discipline, that they were not acting in furtherance of those duties (or in the "same employ") when plaintiff was injured.

A further basis for our conclusion exists in that the complaint liberally construed may be interpreted as alleging that the individual defendants in throwing plaintiff into the dumpster committed an intentional assault upon him. While the complaint alleges negligence and carelessness, it also charges that defendants "in concert with one another * * * caused the plaintiff to be physically restrained," recklessly "failed to discontinue their actions upon plaintiff's resistance, requests and cries," and "used physical force on the plaintiff for no legitimate or lawful purpose." As the First Department held in Mazarredo v. Levine, 274 App.Div. 122, 126-127, 80 N.Y.S.2d 237, 241-42:

"Assuming, however, that the plaintiff was not the aggressor and that the assault arose out of a quarrel between co-employees relating to matters connected with the employment so as to make the plaintiff's injuries compensable as an industrial accident insofar as the employer is concerned, we find nothing in the statute that requires us to construe it as affording to the perpetrator of the assault a defense based on the exclusive remedy of compensation provided for one injured by the negligence or wrong of another in the same employ (Workmen's Compensation Law, § 29, subd. 6).

"The commission of an assault by one employee upon another in the course and arising out of the employment may properly be deemed accidental from the standpoint of the employer as an untoward event not expected or intended. The same, however, can hardly be said for the perpetrator of the assault. It seems unreasonable to suppose that the Legislature intended to give statutory protection in the form of immunity from suit for a deliberate and intentional wrongful act."

(See Matter of Berenberg v. Park Mem. Chapel, 286 App.Div. 167, 169, 142 N.Y.S.2d 345; cf. Matter of Goldfine v. Barsol (Parson) Cab Operating Co., 19 A.D.2d 672, 241 N.Y.S.2d 273; Lavin v. Goldberg Bldg. Material

Page 628

Corp., 274 App.Div. 690, 87 N.Y.S.2d 90, mot. for lv. to app. dsmd. 304 N.Y. 738, 108 N.E.2d 404; Le Pochat v. Pendleton, 271 App.Div. 964, 68 N.Y.S.2d 594; De Coigne v. Ludlum Steel Co., 251 App.Div. 662, 297 N.Y.S. 636; see, also, Ann., 21 A.L.R.3d 845, 880.) Moreover, we reject defendants' suggestion that plaintiff must allege that defendants intended to bring about the harmful consequences that ensued. Whatever may be the rule in an action against an employer (compare Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266, with Matter of Ward v. Typhoon Air Conditioning Co., 27 A.D.2d 785, 786, 277 N.Y.S.2d 315, mot. for lv. to app. den. 19 N.Y.2d 582, 279 N.Y.S.2d 1028, 226 N.E.2d 709), the complaint in an action against a coemployee (or fellow fireman) for an assault committed outside the scope of the coemployee's employment (or not in furtherance of the duties of the fellow fireman) need only allege deliberate intent or conscious choice to do the act which results in the injury (see Masters v. Becker, 22 A.D.2d 118, 254 N.Y.S.2d 633; Baldinger v. Banks, 26 Misc.2d 1086, 201 N.Y.S.2d 629; Lambertson v. United States, 2 Cir., 528 F.2d 441, 444, cert. den. 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374; 2 N.Y.P.J.I. 584).

The issue presented is whether an action for an intentional tort is barred by the plaintiff's receipt of workers' compensation benefits where both parties were employees of the same firm, but the defendant's alleged misconduct arose from purely personal motives and was not in furtherance of the employer's business. We answered this question in the negative in Maines v Cronomer Val. Fire Dept. (50 NY2d 535 [1980]), and Maines compels a reversal here.

[...]

Landowne relies on Werner v State of New York (53 NY2d 346 [1981]) and O'Connor v Midiria (55 NY2d 538 [1982]). In those cases we held that, where the Workers' Compensation Board

[2 N.Y.3d 351]

has determined that certain injuries were suffered accidentally and in the course of employment, a subsequent action against the employer for an intentional tort based on the same event is barred by the exclusive remedy and finality provisions of the Workers' Compensation Law, and by principles of res judicata. In O'Connor we also dismissed an action against a supervisory employee of the same employer, who was not himself accused of intentional misconduct, but was sued on the theory that he knew of the offender's "propensity" for such misconduct (55 NY2d at 540).
Neither in Werner nor in O'Connor did we contradict or question the holding of Maines—that an employee who commits an intentional tort outside of the scope of his employment is not protected by Workers' Compensation Law § 29. We explained in Maines, as the Appellate Division dissent notes, that the same event may be "accidental" from the employer's point of view (thus justifying a workers' compensation award) and intentional from the point of view of the perpetrator. Thus there is no tension between the holding of Maines and the holding of Werner and O'Connor. Indeed, we noted in Werner, with a citation to Maines: "[I]t is clear that subdivision 6 of section 29 of the Workers' Compensation Law does not bar an employee who has accepted compensation benefits from suing a coemployee who has committed an intentional assault upon him . . . ." (53 NY2d at 351 n 1.)

Under Maines, Hanford's complaint against Landowne was erroneously dismissed.³

Plaintiff alleged that he was injured when, as he was attempting to sit down, defendant, his coworker, pulled his chair out from under him, causing him to fall to the ground. After plaintiff's accident, the Workers' Compensation Board determined that he was entitled to benefits for a work-related injury.

An employee's rights to Workers' Compensation benefits is the employee's exclusive remedy against his employer or coemployee for injuries sustained during his employment (see Workers' Compensation Law §§ 11, 29[6] ); Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 357, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007] ). The Workers' Compensation Law, however, does not prevent an employee from recovering for intentional torts, such as an assault (see Hanford v. Plaza Packaging Corp., 2 N.Y.3d 348, 350, 778 N.Y.S.2d 768, 811 N.E.2d 30 [2004]; Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 543, 429 N.Y.S.2d 622, 407 N.E.2d 466 [1980]).

Here, the motion court properly denied defendant's motion for summary judgment dismissing the claim for assault. There are issues of fact as to whether defendant's conduct placed plaintiff in "imminent apprehension of harmful contact" (Fugazy v. Corbetta, 34 A.D.3d 728, 729, 825 N.Y.S.2d 120 [2d Dept. 2006] [internal quotation marks omitted]; see Nicholson v. Luce, 55 A.D.3d 416, 866 N.Y.S.2d 52 [1st Dept. 2008] ).

Also without merit is defendants' contention that plaintiff's sexual assault and battery and intentional infliction of emotional distress claims should have been dismissed by reason of the exclusivity provisions of the Workers' Compensation Law. The exclusivity provisions of the Workers' Compensation Law do not apply to bar an action by an employee to recover for an intentional tort committed, instigated or authorized by the employee's employer (see, Elson v Consolidated Edison Co., 226 AD2d 288; Spoon v American Agriculturalist, 120 AD2d 857, 860). As noted, the record indicates that there may be grounds to impute the complained of conduct by Mohink to the corporation based on Mohink's high-level position. Moreover, plaintiff asserts that Mohink's wife, the acknowledged manager of the business, was aware of the harassment and ignored it rather than confront Mohink (see, Spoon v American Agriculturalist, supra).

We observed that “[a] mechanical reading” of section 29 “would seem to support the board's view and require an affirmance,” but that we were not “bound to accord a literal interpretation to this language if to do so would lead to an egregiously unjust or unreasonable result” (Petterson, 17 N.Y.2d at 38, 268 N.Y.S.2d 1, 215 N.E.2d 329). We also noted that since section 29(6) made workers' compensation the exclusive remedy where the wrongdoer is a fellow employee (see n. 5, supra), it was “[q]uite natural[ ]” for the legislature, when “address[ing] itself to the possibility of a recovery at law for the same injuries, ... to describe the basis for that lawsuit as tortious conduct by ‘another not in the same employ’ ” (id. at 38–39, 268 N.Y.S.2d 1, 215 N.E.2d 329). We therefore held that “[s]ection 29, read in its entirety and in context, clearly reveals a legislative design to provide for reimbursement of the compensation carrier whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits,” remarking that “[i]t would be unreasonable to read the statute as mandating a different result merely because the recovery came out of the pockets of a coemployee

[3 N.E.3d 120]

and not from the resources of a stranger” (id. at 39, 268 N.Y.S.2d 1, 215 N.E.2d 329 [internal quotation marks omitted and emphasis added]).

We have never deviated from this position. Most recently, while holding that the exclusivity provisions of the Workers' Compensation Law did not preclude an employee from bringing an action against a fellow employee for intentional wrongdoing, we cautioned that our decision did not mean that the employee could recover twice for the same injuries; specifically, “[t]o the extent that [the employee] recovers damages from [the coemployee] her recovery may be subject to recoupment by the workers' compensation carrier, as with any recovery by a workers' compensation claimant against a third party,” citing Workers' Compensation Law § 29(1) (Hanford, 2 N.Y.3d at 351 n. 3, 778 N.Y.S.2d 768, 811 N.E.2d 30 [emphasis added]). The plaintiff in Hanford alleged violations of the state Human Rights Law by a coworker.