Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Green, J.P., Balio, Wesley, Callahan and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this action by plaintiff against his former employer, Supreme Court properly granted summary judgment dismissing the fourth cause of action alleging prima facie tort and those portions of the first and second causes of action alleging intentional and willful conduct. Plaintiff did not allege intentional or deliberate acts by the employer directed at causing harm to him in particular, and his 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 (see, Briggs v. Pymm Thermometer Corp., 147 A.D.2d 433, 436; Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110, 112-113). Insofar as defendant sought to dismiss the remaining causes of action, however, defendant's motion should have been held in abeyance while those causes of action were referred to the Workers' Compensation Board to determine whether plaintiff was acting within the scope of his employment (see, Ralph v. Oliver, 186 A.D.2d 977; Rivera v. Lopez, 167 A.D.2d 953).
We have reviewed plaintiff's remaining arguments and conclude that they are without merit.