Opinion
No. 037516/2018 E
09-13-2019
OSCAR TORRES and HILDA TORRES, Plaintiffs, v. PMC CONSTRUCTION COMPANY, Defendant.
Unpublished Opinion
DECISION & ORDER
HON. ROLF M. THORSEN, A.J.S.C.
In this personal injury action alleging negligence and violations of the Labor Law, Defendant moves pursuant to CPLR 3211(a)(2) to dismiss Plaintiff's complaint. The Court has considered the following papers on the motion:
1. Notice of Motion, Affirmation in Support and Exhibits A through I attached thereto;
2. Plaintiff's Affirmation in Opposition and Exhibit A attached thereto; and
3. Defendant's Affirmation in Reply.
Plaintiff, Oscar Torres, was allegedly injured during the scope of his employment with Defendant, PMC Construction Company (hereinafter "Defendant"), while painting at a job site. Plaintiff filed a claim for Workers' Compensation benefits, which he received through the Uninsured Employer's Fund, due to the fact that Defendant had failed to obtain Workers' Compensation insurance. Defendant now moves to dismiss Plaintiff's Complaint pursuant to CPLR §3211(a) (2) claiming that the Court lacks subject matter jurisdiction since Plaintiff elected his remedy through Workers' Compensation.
To begin, where a defendant moves to dismiss a complaint claiming, as here, that the action is barred by the Workers' Compensation Law, it is more appropriately brought under CPLR §3211 (a) (7) that plaintiff failed to state a cause of action. See, e.g., Krnner v. EMFT, LLC, 87 A.D.3d 717, 717-718 (2d Dept. 2011); Periera v. St. Joseph's Cemetery, 54 A.D.3d 835, 836 (2d Dept. 2008) . "The election of remedies doctrine and the exclusivity provisions of the Workers' Compensation Law do not implicate the subject matter jurisdiction of the court, but rather deprive a plaintiff of a cause of action." Rodriguez v. Dickard Widder Indus., 150 A.D.3d 1169, 1171 (2d Dept. 2017). Thus, the Court shall treat Defendant's motion as one brought pursuant to CPLR §3211(a) (7) .
"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR 3026) and 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.'" Beia v. Meadowbrook Ford. 48 A.D.3d 495, 496 (2d Dept. 2008)(Internal citations omitted).
In support of its motion to dismiss, Defendant argues that Plaintiff s action is barred by the exclusivity provision set forth in Workers' Compensation Law §11, entitled Alternate Remedy. That section provides, in relevant part, as follows:
The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributes, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if any employee fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee . . . may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury....
Workers' Compensation Law §11 (Emphasis added). In other words, where an employer has provided workers' compensation insurance to its employees, an injured employee's exclusive remedy shall be workers' compensation benefits. Where, however, an employer has failed to provide workers' compensation insurance, an injured employee has a choice: he can either elect to claim workers' compensation benefits or "maintain an action in the courts for damages." In other words, "[an] employer's failure to maintain coverage, being one of the exceptions to the exclusive remedy rule, permits the employee the option of either to sue for the damages sustained as a result of the injury, or to seek the benefits provided under the Workers' Compensation Law." See, Minkowitz, Martin, Practice Commentaries, McKinney's Cons. Laws of NY, Book 64, Workers' Compensation 9 to 14-end at 56 (2013 ed.) (Emphasis added).
The Practice' Commentaries further reiterates this point where it states: "[a]n employer who has not provided for the payment of benefits as required .by the statute, gives the injured employee the option to bring an action against the uninsured employer in the civil courts for damages or to present a workers' compensation claim before the Workers' Compensation Board." See, Minkowitz, Martin, Practice Commentaries, McKinney's Cons. Laws of NY, Book 64, Workers' Compensation 9 to 14-end at 57.
Applied here, as Plaintiff has admittedly filed a claim for workers' compensation benefits and received payments pursuant to a decision by. the Workers' Compensation Board, Plaintiff is barred from bringing the within action. Plaintiff elected to seek benefits provided under the Workers' Compensation Law and cannot now also sue for damages in court. Thus, Defendant's motion to dismiss must be granted.
With respect to Plaintiff's argument that Defendant's motion was not timely filed, the Court certainly does not condone the late filing of papers. Moreover, the Court finds Defendant's reliance on CPLR 3211(e) to be misplaced as Defendant had not yet filed a responsive pleading. However, the Court notes that Defendant filed its motion only seventeen days after the twenty-day deadline within which to file a responsive pleading had expired. Plaintiff had not yet moved for a default judgment and the Court finds that, although Defendant should have sought leave to file its responsive pleading out of time, a delay of seventeen days is not lengthy. Lastly, "public policy favors the resolution of cases on their merits." Bunch v. Dollar Budget, Inc., 12 A.D.3d 391 (2d Dept. 2004).
Although a defendant may make a motion to dismiss the complaint for failing to state a cause of action "at any subsequent time [referring to after service of the responsive pleading] or in a later pleading," that does not absolve the defendant's obligation to file a responsive pleading within the time required. See, CPLR 3211(e).
In its reply, Defendant requests that it be granted time to serve and file a responsive pleading. See, Reply Affirmation at 15. Defendant should have filed a cross-motion for such relief. See, CPLR 2215.
Based on the foregoing, it is hereby
ORDERED that Defendant's motion to dismiss the complaint is granted.
The foregoing constitutes the Decision and Order of this Court.