1. This affirmation and the annexed exhibits are submitted in support of

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1 FILED: NEW YORK COUNTY CLERK 08/25/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 08/25/2015 SUPREME COURT OF THE STATE OF NEV/ YORK COUNTY OF NEW YORK PAULA YOLING, Plaintiff(s), -against MS FISH CO., YACOV EISDORFER, THE CITY OF NEV/ YORK, ALAN TRAKHTENBERG, NYC PARKS & RECREATION, Defendant(s). AFFIRMATION IN SUPPORT Index No Law Dept. # Return Date: August 19,2015 SARA G. KACZMAREK, an attorney admitted to practice law in the State of New York and an Assistant Corporation Counsel of the City of New York, affirms the truth of the following under the penalties of perjury pursuant to CPLR upon information and belief based upon the records maintained in the offices of the Law Department of the City of New York 1. This affirmation and the annexed exhibits are submitted in support of the motion of defendant the CITY OF NEW YORK s/h/a THE CITY OF NEW YORK and NYC PARKS & RECREATION, and ALAN TRAKHTENBERG (hereinafter "City") for an Order pursuant to CPLR 3212 granting summary judgment and dismissing the complaint and all crossclaims against the City. RELEVANT FACTS AND PROCEDURAL HISTORY 2. This is an action for personal injuries claimed to have been sustained by plaintiff PAULA YOUNG (hereinafter "plaintiffl') on March 6, 2014, at approximately l2:45pm, when the New York City Parks and Recreation vehicle she was a passenger in came into contact with a vehicle operated by YACOV EISDORFER and owned by MS FISH CO. at the intersection of Broadway and W 57'l' Street in New York, New York. See Notice of Claim, annexed hereto as Exhibit A. At the time of the accident, plaintiff was an employee of the City -3-

2 of New York, Department of Parks and Recreation. Plaintiff was eligible for and received 'Workers' Compensation benefits from the City of New York for the injuries she suffered as a result of this accident. See NY CLS Soc Serv $ 336-c; United States of America v. City of New York, 359 F.3d 83 (2004). 3. On or about June 2, 2015, Plaintiff commenced this lawsuit against the City by purchase of an index number and service of a Summons and Verified Complaint. The City joined issue by service of its Answer on June 19, The City's Answer asserted an affirmative defense that the suit is barred by reason of the fact that Worker's Compensation is the exclusive remedy of the plaintiff. Plaintiff served an Amended Complaint on June 24, The City served an Amended Answer to the Amended Complaint on July 15, 2015 and then served an Amended Answer on August 79, 2015 answering for employee ALAN TRAKHTENBERG. (Pleadings collectively annexed hereto as Exhibit B.) On February 9, 2015, plaintiff testified during a statutory 50H examination ("50H"). (50H Transcript of Paula Young annexed hereto as Exhibit C). Plaintiff served a Verified Bill of Particulars on or about Iune 24, (Exhibit D). ARGUMENT I PLAINTIFF'S COMPLAINT MUST BE DISMISSED BECAUSE THE ACTION IS BARRED BY \ryorkers COMPENSATION, WHICH IS AN EXCLUSIVE REMEDY. 4 Workers' Compensation Law $ 10 mandates that employers, including the City of New York, pay compensation to its employees for injuries arising out of and in the course of their employment. 'Workers' Compensation Law $ I I provides, in relevant part: The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability -4-

3 whatsoever, to such employee, his or her personal representatives, spouse) parents, dependents, distributees, 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... Thus, workers' compensation is an exclusive remedy as a matter of law 5 Additionally, whenever it appears from a plaintiffls pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and proving non-coverage falls on the plaintiff. O'Rourke v. Lons, 41 NY2d 219, (1976); Murra:r v. New York, 43 N.Y.2d 400 (1971); Villatoro v. Grand Blvd. Realtv. Inc., l8 A.D.3d 647 (2d Dep't 2005). held that 6 The Court of Appeals in O'Rourke v. Lons, 4l NY2d 219,226 (1977),...the unavailability of workmen's compensation benefits or insurance for compensation benefits is a matter integral to plaintiffs cause of action, and, as such, must be alleged and proved by the tort plaintiff.... Although it may be first asserted in the answer by way of defense, or affirmative defense, the issue of compensation exclusivity is to be pleaded and proved by the plaintiff and the omission of plaintiff to so pleacl cloes not work to shift the burden of pleading or proving (emphasis added). Because Workers' Compensation benefits are an exclusive remedy, plaintiff must allege and prove their unavailability before she can proceed to the next step to plead, allege, and prevail on a theory of negligence. Here, Plaintiff brings suit against her employer, yet fails to allege noncoverage. Thus, the complaint fails to state a cause of action and must be dismissed pursuant to CPLR Further, Plaintiff s injury was not grave. According to Workers' Compensation Law $ 1 l, a grcve injury "means only one or more of the following: Death, permanent and total loss or use or amputation of an arm, leg, hand or foot, loss of multiple -5-

4 fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an extemal physical force resulting in permanent total disability''. 8. Plaintiff did not sustain a grave injury as required by the statute. In her bill of particulars, plaintiff lists as the injuries she sustained: left knee posterior horn medial meniscal hearlgrade II signal; right knee grade II signal/horizontal tear; disc herniations; disc bulges; cervical strain and sprain; lingamentum hypertrophy; right hip bursitis, arthopathy, sprain and strain, right shoulder derangement; and right scapular sprain and strain See Exhibit D. According to her list of injuries, Plaintiff did not sustain any "grave injuries" as defined by the 'Workers Compensation law. 9. In the case at bar, it is clear that Plaintiff is eligible for, and has collected,'workers' Compensation benefits. Since the onset of the litigation, it has been readily apparent that Plaintiff is an employee of the City of New York for workers' compensation purposcs. Anncxcd collcctivcly hcrcto as Exhibit E arc thc Workcrs Compensation records indicating that Plaintiff has applied for and received Workers Compensation benefits, including the State of New York Workers Compensation Board Notice of Decision dated September 12, 2074, indicating that medical treatment and care for established sites of injury andlor conditions is authorized; the Workers Compensation Board New York City Law Department Notice to the Claimant; the C-2 Employer's Report of Work Related Injury/lllness; the C-I1 Employer's Report of Injured Employee's Change in Employment Status Resulting from Injury; a Notice of Lien to Plaintiffls attorney; and an Abstract Claim Summary indicating that the City has paid approximately $l1, on this Workers Compensation claim to date. Finally, on February -6-

5 25,2015, the Comptroller's Office sent Plaintiff a letter disallowing her claim due to the fact that Plaintiff s claim was barred by Section I I of Workers' Compensation law. (Disallowance Letter annexed hereto as Exhibit F). 10. Further, the motor vehicle accident report, attached to Plaintiffs Notice of Claim, indicates that the vehicle she was a passenger in was a Department of Parks and Recreation vehicle. See Exhibit A. On February 9,2015, Plaintiff testified at her 50H that she is employed as a City Parks Worker by the New York City Department of Parks and Recreation, and was employed in that capacity at the time of the accident. See Exhibit C at page 4,lines 20-25; page 5, lines 2-6. She was a passenger in the middle seat of a vehicle owned by the Department of Parks and Recreation on the date of the accident. See, id, page 6-7,lines She was working in the course of her employment at the time of the accident. Id. at page 7-8, lines Plaintiffls Parks Department manager came to the scene of the accident. Id. at page 23, lines Although Plaintiff testified that she did not apply for nor receive Workers Compensation benefits for this accident (id. at 41, lines 18-23) the records belie this statement. I 1. CONCLUSION Plaintiff herein alleges that the City is liable for an accident that occurred during the course her employment with the City of New York Department of Parks and Recreation. As a City Parks Worker with the Parks Department, Plaintiff was a covered City employee under the Workers' Compensation Law. The Comptroller's Office sent a letter of disallowance to Plaintiff in February of this year, and the City asserted that workers compensation is plaintiff s exclusive remedy as an affirmative defense in its original Answer and in its subsequent Amended Answers. Further, Plaintiff has indeed applied for and been awarded workers' compensation benefits, and has collected over $11,000 in benefits to date. As Plaintiff -7 -

6 has not suffered a grave injury as defined by statute, and is eligible for and has received workers compensation benefits, the instant action must be dismissed as against the City and Alan Trakhtenberg, because, as demonstrated herein, it is barred by the Workers' Compensation Law. \ryherefore, it is respectfully requested that the City's motion be granted in its entirety, and for such other and further relief as this Court may deem just and proper. Dated: New York, New York August 25,2015 Yours, etc., ZACHARY W. CARTER Corporation Counsel Attorney for the Defendant THE CITY OF NEV/ YORK 100 Church Street New York, New York, By: G. KA C Counsel (212) 3s