WINNING RESULTS: LOIS Prevails on New York Workers’ Compensation Exclusivity Summary Judgment Motion by Establishing Special Employment

In a civil action where the claimant/plaintiff had already received over $500,000 in workers’ compensation benefits and then sued the staffing company that provided the co-employee who harmed him, Lois Law Firm successfully argued for summary judgment on the ground that the claimant/plaintiff’s action was barred by Sections 11 and 29(6) of the New York Workers’ Compensation Law.

The defendant was an employee of a staffing company and was lent to a bakery. The plaintiff was a regular employee of the bakery. The defendant got in a physical altercation with another employee, which the plaintiff attempted to break up and was injured in the process. Suit was filed by the injured bakery employee against the lent employee-defendant and the staffing company. LOIS took on the case after prior counsel failed to raise workers’ compensation exclusivity as an affirmative defense and had recommended settlement.

First, attorney Christopher Major successfully obtained leave to amend the answer to the complaint, raising workers’ compensation exclusivity under Sections 11 and 29(6) as an affirmative defense. Thereafter, interviews were conducted with managing employees of both the staffing company (the “general employer”) and the bakery (the “special employer”). Witness affidavits were procured establishing that, while the staffing company handled payroll and workers’ compensation, the bakery had exclusive control and supervision over the “day to day” work of the lent employee-defendant, including timekeeping, training, supplying equipment, directing tasks, etc.

Based upon the witness affidavits, and without even proceeding to depositions, attorney Christopher Major filed an immediate summary judgment motion on behalf of the staffing company. The argument required several showings: that a special employment relationship existed between the bakery and the defendant, that the plaintiff and the defendant could be considered coworkers as a result, that the fact that the underlying accident was an intentional tort (assault) did not remove the protections of the Workers’ Compensation Law, that all actions were barred (general negligence against the defendant, negligent hiring against the staffing company, the spouse’s per quod claim, etc.), that the staffing company was entitled to the protections of Section 29(6) and Section 11 despite not being the plaintiff’s employer or having any employment relationship to the plaintiff whatsoever, etc.

Though the plaintiff sought to argue that his claim should not be barred because he had no relationship to the staffing company, the plaintiff had conceded in his opposition papers that the defendant was a coworker. Accordingly, attorney Christopher Major pointed out that the plaintiff had conceded the only triable issue of fact, which is whether the plaintiff and defendant were coworkers. Ultimately, the Justice of the Supreme Court agreed with this analysis and summary judgment was granted. The plaintiff’s complaint was dismissed with prejudice, and the defendants were awarded the costs and disbursements associated with defense of the action.

Given the size of the workers’ compensation lien, a jury verdict in the millions of dollars was potentially on the table. An aggressive defense, however, resulted in summary judgment dismissing the complaint, even after prior counsel had recommended settlement and had not raised workers’ compensation exclusivity as an affirmative defense.

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We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New York State Workers' Compensation Board. We handle cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.

We only assign one attorney and one paralegal to each case. This means that your team members always have one contact to go to for any questions. We do not have 'hearing attorney' or a 'negotiation attorney' or 'appeal department' or anything else! All of our attorneys handle all of those roles – meaning cases are not 'passed around' as they move through the litigation process. Your risk professional or adjuster always knows who is assigned – because the attorney does not change.

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