Appellate Division affirmed the trial court, noting the defendants’ actions did not reach the high bar to apply the intentional wrong exception.

The plaintiff injured his right eye while working with a mixer that had been modified, resulting in the loss of his eye and the permanent need for a prosthetic. He filed a workers’ compensation claim and a complaint against the defendants. The defendants argued the claims were barred by the Workers’ Compensation Act, as there was no intentional wrong, and moved for summary judgment. The plaintiff argued that he was a casual employee, the defendants failed to obtain workers’ compensation coverage, and there was at least a genuine issue of material fact as to whether the defendants knew that altering the mixer was substantially certain to result in an injury. 

The trial court granted the defendants’ summary judgment motion. The court noted there was no genuine issue of material fact, as no reasonable jury could find there was a substantial certainty the plaintiff would be injured and the defendants’ failure to carry workers’ compensation insurance was not an exception to the workers’ compensation bar due to the existence of the Uninsured Employers’ Fund.

In viewing the facts in a light most favorable to the plaintiff, the Appellate Division affirmed, noting the defendants’ actions did not reach the high bar to apply the intentional wrong exception, especially as there was testimony that the modification was common practice among the industry. And while sympathetic to the severity and permanency of the plaintiff’s injury, the Appellate Division indicated that allowing his claim to proceed would contradict the Workers’ Compensation Act. The Appellate Division affirmed the grant of summary judgment for the defendants. 
 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 1, January 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}