“dual capacity”

Nepomuceno v City of New York, 2012 NY Slip Op 02572 (1st Dept., 2012)

In denying defendant's motion for summary judgment, the motion court relied on the "dual capacity" doctrine, which has been rejected by the Court of Appeals (see Billy v Consolidated Mach. Tool Corp., 51 NY2d 152, 159-160 [1980]), and found that this action was not barred by the Workers' Compensation Law. However, where, as here, "the availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law," the matter must, in the first instance, be determined by the Workers' Compensation Board (Liss v Trans Auto Sys., 68 NY2d 15, 20—21 [1986], quoting O'Rourke v Long, 41 NY2d 219, 228 [1976]; see also Valenziano v Niki Trading Corp., 21 AD3d 818 [2005]). Accordingly, instead of resolving the motion, the motion court should have referred the matter to the Board for a hearing and determination as to the availability of workers' [*2]compensation (see Liss, 68 NY2d at 21; Valenziano, 21 AD3d at 818; Mattaldi v Beth Israel Med. Ctr., 297 AD2d 234 [2002]). The motion court may stay the matter pending resolution by the Workers' Compensation Board.

Patricka v City of New York, 2012 NY Slip Op 02163 (1st Dept., 2012)

Montefiore's motion should have been granted because plaintiff's exclusive remedy in this action is under the Workers' Compensation Law. The record shows that plaintiff, an employee of Montefiore, was injured when she tripped on a sidewalk adjacent to the emergency room, on her way back from Montefiore's human resources department to her own office, during working hours; it is uncontested that Montefiore was charged with the duty of maintaining in a safe condition the sidewalk on which plaintiff tripped. Although plaintiff contends that she was on a "purely personal mission" at the human resources department, inquiring about Montefiore holiday party tickets, this was, at least, a dual-purpose activity not unrelated to her job (see Matter of Neacosia v New York Power Auth., 85 NY2d 471, 475 [1995]). Moreover, even accepting that this was a purely personal task, the record shows that plaintiff was returning to her [*2]office, during working hours, for the purpose of resuming work, and was injured on property which her employer was responsible to maintain (see Sulecki v City of New York, 74 AD3d 454 [2010]).

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