Opinion
9796 Index 26696/15E
07-02-2019
Joel SAMPER, Plaintiff–Respondent, v. 352 BROADWAY LLC, et al., Defendants, A–Z Apartment Building Supply Corp., Defendant–Appellant.
Devitt Spellman Barrett LLP, Smithtown (Felicia Gross of counsel), for appellant. Lawrence L. Kaye, P.C., Brooklyn (Lawrence L. Kaye of counsel), for respondent.
Devitt Spellman Barrett LLP, Smithtown (Felicia Gross of counsel), for appellant.
Lawrence L. Kaye, P.C., Brooklyn (Lawrence L. Kaye of counsel), for respondent.
Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 3, 2018, which denied the motion of defendant A–Z Apartment Building Supply Corp. (A–Z) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
A–Z established that plaintiff's claims are precluded by the exclusivity provisions of Workers' Compensation Law §§ 11, 29(6) (see generally Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 357, 850 N.Y.S.2d 359, 880 N.E.2d 845 [2007] ). A–Z submitted evidence showing that following his accident, plaintiff applied for, was awarded, and received Workers' Compensation benefits under A–Z's Workers' Compensation policy (see Mateo v. 1875 Lexington, LLC, 134 A.D.3d 1072, 21 N.Y.S.3d 633 [2d Dept. 2015] ). The Workers' Compensation Board's finding that A–Z was plaintiff's employer at the time of the accident is implicit in the determination authorizing the payment of benefits (see Mazzucco v. Atlas Welding & Boiler Repair, 297 A.D.2d 513, 747 N.Y.S.2d 23 [1st Dept. 2002] ).
Plaintiff failed to raise a triable issue of fact, as his submissions do not dispute that he received Workers' Compensation benefits through A–Z's insurance policy. His submission of paychecks issued by defendant 325 Broadway LLC is insufficient to show that A–Z was not his employer, in light of the evidence that he filed for and obtained Workers' Compensation benefits through A–Z's policy (see Zabava v. 178 E. 78, 212 A.D.2d 406, 622 N.Y.S.2d 42 [1st Dept. 1995] ).