Opinion
2001-05987
Argued October 30, 2001
December 3, 2001.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered May 23, 2001, as granted those branches of the motion of the defendant County of Westchester which were to dismiss the third and fifth causes of action of the complaint insofar as asserted against it for failure to state a cause of action pursuant to CPLR 3211(a)(7).
Adam Seiden, Mount Vernon, N.Y., for appellants.
Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz and Bridget Gauntlett of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, SANDRA L. TOWNES, A. GAIL PRUDENTI, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiffs' contention, the Supreme Court did not convert the motion to dismiss the complaint pursuant to CPLR 3211(a)(7) into one for summary judgment (see, CPLR 3211[c]). The plaintiffs failed to state causes of action against the County of Westchester (hereinafter the County) to recover damages for intentional infliction of emotional distress (see, Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303; Fischer v. Maloney, 43 N.Y.2d 553) or for intentional tort under a theory of respondeat superior (see, Orzechowski v. Warner-Lambert Co., 92 A.D.2d 110; Hart v. Sullivan, 84 A.D.2d 865, affd 55 N.Y.2d 1011), either in the complaint or in the submissions made in opposition to the motion.
Since the testimony of the plaintiff Robert Reno at an examination pursuant to General Municipal Law § 50-h established that he received Workers' Compensation benefits for his injuries, the plaintiffs' causes of action against the County sounding in negligence were properly dismissed as barred by the exclusivity provisions of the Workers' Compensation Law (see, Workers' Compensation Law § 11; Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412; Maas v. Cornell University, 253 A.D.2d 1, affd 94 N.Y.2d 87).
RITTER, J.P., FEUERSTEIN, TOWNES and PRUDENTI, JJ., concur.