The following papers were read and considered on the pending motions:1, 2 Notice of Motion, Affirmation by Scott J. Koplik, Attorney for Claimant, and attached exhibits3, 4 Notice of Cross-Motion, Affirmation by J. Gardner Ryan, Assistant Attorney General and attached exhibits5 Reply Affirmation in Further Support and in Opposition by Scott J. Koplik, Attorney for Claimant, and attached exhibits6-9 Filed papers; Claim, Answer, Hayo v. State of New York, Claim No. 121086, unreported (Ct Cl, Scuccimarra, J., filed Mar. 10, 2016); Hayo v. State of New York, Claim No. 121086, Motion Nos. M-89274, CM-89429, unreported (Ct C1, Scuccimarra, J., filed Feb. 21, 2017)DECISION AND ORDER By decision after a bifurcated trial on the issue of liability, this Court found that the State of New York was 50 percent responsible for any causally related harm that befell Mark Hayo on January 19, 2011, when a known dangerous ice condition was inadequately addressed at an employee residence at Bedford Hills Correctional Facility where claimant – employed by the facility as a plant superintendent – resided. Liability was premised in part upon claimant’s co-employees’ failures to comply with his own directives concerning the ice condition.In prior motion practice, the Court granted the defendant’s application for an order (1) allowing defendant to amend its answer to include the complete defense that the claimant’s accident was subject to the provisions of the Workers’ Compensation Law §§11 and 29, and (2)staying the matter pending a determination by the Workers’ Compensation Board with regard to whether Mr. Hayo was injured in the course of his employment and the viability of Mr. Hayo’s workers’ compensation claim before such agency. Hayo v. State of New York, Claim No 121086, Motion Nos. M-89274, CM-89429, unreported (Ct Cl, Scuccimarra, J., filed Feb. 21, 2017). The State argued there that the Workers’ Compensation Board had exclusive jurisdiction to determine whether claimant’s injury-causing accident occurred during the course of his employment, and whether his tort claim was not otherwise exempted from the exclusivity of his remedy under the Worker’s Compensation Law.After the Court’s decision and order on the motion, the State amended its answer to include only one “complete defense” asserting the exclusivity of claimant’s workers’ compensation remedy, and served and filed same on March 13, 2017. [Koplick Affirmation, Exhibit B].On July 14, 2017, the Workers’ Compensation Board filed its decision finding that Mr. Hayo’s claim was “disallowed” and that he “was not at work at the time of the injury and was not injured in the course of employment.” [Koplick Affirmation, Exhibit A]. Such determination was distributed to several entities, including claimant’s employer, Bedford Hills Correctional Facility, a facility operated by the New York State Department of Corrections and Community Supervision. This is the final binding determination, as no party or other interested entity completed an appeal of same.Thereafter, the State indicated it would nonetheless not withdraw the Workers’ Compensation defense in a writing to claimant, copied to the Court, dated December 22, 2017. [Koplick Affirmation, Exhibit D].Claimant now moves for an order lifting the stay, striking the workers’ compensation defense raised in defendant’s amended answer, and setting a date for the trial on the issue of damages. Defendant’s cross-motion seeks an order dismissing the claim, premised upon the exclusivity of the Workers’ Compensation law remedy.The Court agrees that the State’s position that it was incumbent upon the claimant here to appeal the determination of the Workers’ Compensation Board is incorrect, Mr. Hayo’s employer, Bedford Hills, was a party to the administrative proceeding, represented by the State Insurance Fund, and is sued in this Court as the applicable agency of the State of New York in its capacity as a landowner. Although Bedford Hills is not a named defendant in this Court – very few State entities are — it is the State landowner in the present lawsuit, and it is the employer noticed in the Workers’ Compensation Board proceeding.“‘Under the doctrine of judicial estoppel, or estoppel against inconsistent positions, a party is precluded from inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding’ (Maas v. Cornell Univ., 253 AD2d 1, 5 [1999], affd 94 NY2d 87 [1999]).” Matter of Hartsdale Fire Dist. v. Eastland Constr., Inc., 65 AD3d 1345, 1346 (2d Dept 2009) lv to app. Denied 14 NY3d 701 (2010).The Court also agrees that the position taken here by the State is inconsistent with its earlier position with regard to the exclusive jurisdiction of the Workers’ Compensation Board to determine the questions it has now finally decided. Having succeeded in arguing earlier before this Court that this Court did not have jurisdiction to determine whether claimant’s injury causing accident occurred during the course of his employment, and that he was therefore limited to his remedies under the Workers’ Compensation law, the defendant is judicially estopped from now arguing that this Court has concurrent jurisdiction with the Board, and from raising the applicability of Workers’ Compensation to the claimant’s claim of personal injury. As a matter of course, liability has already been apportioned in the liability phase of this bifurcated trial.Based on the foregoing and the underlying record herein, claimant’s motion is granted, defendant’s cross-motion is denied, the stay on further proceedings is lifted, the defense premised upon the exclusivity of the Workers’ Compensation Law is stricken from the answer, and the matter shall be scheduled for a trial on the issue of damages as soon as is practicable.White Plains, New YorkAugust 28, 2018
