Opinion
CA 03-02145.
Decided June 14, 2004.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered July 11, 2003. The order granted defendant's motion to dismiss the complaint in a personal injury action.
GERALD P. GORMAN, HAMBURG, FOR PLAINTIFF-APPELLANT.
BROWN KELLY LLP, BUFFALO (JOHN E. STANTON, JR., OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she slipped and fell at the entrance to her place of employment. Supreme Court properly granted the motion of defendant, the owner of the premises, to dismiss the complaint on the ground that the action is barred by the exclusivity provision of Workers' Compensation Law § 29 (6). Because plaintiff and all of defendant's partners are "in the same employ," the action against defendant is barred ( id.; see Kupke v. Mullane, 215 A.D.2d 531, 532; Cipriano v. FYM Assoc., 117 A.D.2d 770; cf. Blumberg v. Ten Washington Realty Assoc., 262 A.D.2d 592; Lindner v. Kew Realty Co., 113 A.D.2d 36, 47). We reject the contention of plaintiff that she is not limited to the remedy of workers' compensation because the accident occurred when she was on her way to work ( see Malinka v. Mugavero, 27 A.D.2d 691; see also Smithline v. Ghessi, 25 A.D.2d 841, lv dismissed 18 N.Y.2d 582).