This action arises from the tragic death in July 2015 of Alex K. Smith, who was then fourteen years old and killed while operating a skid steer owned by Park Family Farm (PFF) in the Town of Homer, Cortland County, New York. The accident was unwitnessed, but Luke M. Park, one of the partners of PFF, and Alex’s father found Alex crushed beneath a large hay bale at the front of the skid steer. PFF had workers compensation coverage in place through the State Insurance Fund at the time of the accident. The policy in question was issued effective December 31, 2014, to Luke M. Park and his father, Michael R. Park, doing business as PFF. On December 31, 2014, Michael R. Park withdrew from the PFF partnership, and the partnership thereafter consisted of Luke M. Park and The Luke Park 2014 Special Business Trust.Vicky Smith, the decedent’s mother and duly appointed administrator of his estate, filed a claim for workers’ compensation death benefits in March 2016, amending her claim in June 2016. Following a Workers’ Compensation Board hearing in June 2016, Judge Sharon Pelosi determined, among other things, that decedent was a minor illegally employed by PFF at the time of his death and awarded his mother and father $25,000 each in death benefits.Both Ms. Smith and PFF sought review by the Workers’ Compensation Board (“Board”). In a decision dated April 6, 2017, a three-judge panel of the Board found, over Ms. Smith’s objection, that PFF was insured at the time of decedent’s death and that Judge Pelosi properly awarded death benefits to the decedent’s parents. Because decedent was illegally employed, the Board invoked the double indemnity provisions of Workers’ Compensation Law §14-a(1) and increased the award to each parent to $50,000.Ms. Smith appealed the Board’s determination, and the Appellate Division affirmed. Smith v. Park, 161 AD3d 1426 (3d Dept 2018).On April 3, 2017, Ms. Smith, individually and as administrator of the estate of Alex Smith, filed a verified complaint in Cortland County Supreme Court against Luke M. Park, Michael R. Park, Luke Park 2014 Special Business Trust, Michael R. Park and Luke M. Park d/b/a PFF, and Luke M. Park and Luke Park 214 Special Business Trust, d/b/a PFF. The complaint states eight causes of action, five of which allege negligence or gross negligence; one alleges malicious, wonton and reckless behavior “beyond mere negligence;” one alleges wrongful death; and one asserts civil liability for criminal conduct. No claim is asserted pursuant to Executive Law §632-a, commonly known as the “Son of Sam” law.On September 20, 2018, Luke Park pleaded guilty to three misdemeanor criminal charges arising out of decedent’s death: endangering the welfare of a child [Penal Law §260.10(1)]; prohibited employment of a minor [Labor Law §145]; and allowing a minor to operate a large driven hoisting apparatus [Labor Law §133(2)(p)].Plaintiff moved for summary judgment against only Luke Park, individually, on the eighth cause of action, based on his criminal conduct. In addition to summary judgment on liability arising from Luke Park’s criminal conduct, Plaintiff requests the scheduling of a hearing to determine the damages arising from that conduct, including damages pursuant to Executive Law §632-a.Defendant cross-moved for summary judgment, seeking dismissal of all causes of action in the complaint, arguing that the workers’ compensation death benefit, awarded by Judge Pelosi, affirmed and enhanced by the Board panel, and affirmed by the Appellate Division, is the exclusive remedy available to Plaintiff. Defendants also assert that damages pursuant to Executive Law §632-a are inapplicable to the facts of this case.For the reasons set forth below, the Court denies Plaintiff’s motion for summary judgment against Luke Park and grants Defendants’ motion for summary judgment, dismissing Plaintiff’s complaint in its entirety.The applicability of the workers’ compensation system to decedent’s tragic death has been confirmed by the Appellate Division, whose findings have a preclusive effect on the outcome of this Supreme Court action. Smith v. Park, 161 AD3d 1426 (3d Dept 2018). Plaintiff may only maintain an independent cause of action outside of the workers’ compensation system if one of the two exceptions in Workers Compensation Law §11 applies. The first of these exceptions is a failure by the employer to procure workers’ compensation insurance. Coverage has been determined to be applicable and workers’ compensation death benefits have been ordered and affirmed. Id.The second exception to the exclusivity of the workers’ compensation system is triggered when the employer commits an intentional tort against the employee. This exception is applicable only if the employer’s actions were directed toward a specific employee, with the intention of causing harm to that particular employee. Ross v. State, 8 AD2d 902, 903 (3d Dept 1959). Negligence on the part of the employer, even gross negligence, or recklessness, has been held insufficient to meet the standard for this intentional act exception. DePaolo v. Albany Med. Coll., 40 AD3d 678, 679 (2d Dept 2007); Ferguson v. Don Davis Auto World, Inc., 207 AD2d 991 (4th Dept 1994).Plaintiff argues that the misdemeanor convictions of Luke Park, by his plea, satisfy the intentional act exception. The misdemeanors to which Luke Park plead guilty do not involve his direct action toward decedent, with intention to harm decedent. At most, these misdemeanors establish gross negligence or recklessness on the part of Luke Park, which is insufficient for the intentional tort exception to apply. Id. It is not disputed that Luke Park intentionally hired a then-fourteen year old decedent to work at PFF, but nothing in the elements of the misdemeanors, or the allocution of the pleas, suggests an affirmative action by him to intentionally cause direct harm to Alex Smith. Plaintiff’s failure to show that Luke Park’s actions fall within the second exclusion to Workers Compensation Law §11 compels the denial of Plaintiff’s motion for summary judgment on liability against Luke Park and the granting of the Defendants’ cross-motion for dismissal of all the claims against Luke M. Park, individually, and Luke Park and Luke Park 2014 Special Business Trust, d/b/a PFF.Plaintiff did not plead a claim under Executive Law §632-a in her complaint. At the oral argument of this motion, Plaintiff’s counsel acknowledged that the notice required under Executive Law §632-a(4) was not filed, either at the time the complaint was filed or at any time thereafter. Plaintiff nonetheless asserts her ability to bring such a claim against Luke Park. Even if not precluded by the applicability of workers’ compensation as the sole remedy available to Plaintiff, or dismissible as not properly plead or complied with, damages pursuant to Executive Law §632-a are nonetheless inapplicable in this case.By its terms, Executive Law §632-a is only applicable to a victim of a felony, or a crime committed in another jurisdiction which encompasses the elements of a felony in New York. Executive Law §632-a(1)(e). Plaintiff’s allegation that the elements of the misdemeanors of endangering the welfare of a child, to which Luke Park plead, are the same as the elements of Class D felony for assault in the second degree or reckless endangerment in the first degree, is unavailing. Plaintiff acknowledged at oral argument that the elements of the misdemeanors to which Luke Park plead are not identical. Luke Park was not convicted of a crime within the meaning of Executive Law §632-a(1).In addition, Plaintiff does not allege the existence of any applicable resources or assets of Luke Park available for recovery under Executive Law §632-a. Defendants have received no economic benefit from decedent’s tragic death. To the contrary, they have been held personally liable for some of the workers’ compensation death benefit. Plaintiff’s assertion that Luke Park is operating a profit-making venture through the employment of underage children is completely inconsistent with her pleadings and all the facts adduced in the criminal proceedings, workers’ compensation proceedings, and this Supreme Court action.With respect to the claims against Michael Park, and Michael Park and Luke Park, d/b/a PFF, Plaintiff has taken the position, subsequent to her initial application for workers compensation death benefits, that Michael Park is not part of the PFF. This position formed the premise of her argument to the Workers’ Compensation Board and the Appellate Division that Defendant should be found to be without workers compensation coverage, allowing claims such as those raised in this Supreme Court proceeding to advance. Plaintiff is estopped from now asserting that Michael Park is part of the partnership which employed decedent. There is no allegation in the pleadings connecting Michael Park with the decedent’s employment by PFF, other than Michael Park being a partner in the partnership. Thus, the claims based on Michael Park’s negligence must be dismissed.Even if Plaintiff is not estopped from now arguing that Michael Park is part of the employer partnership, as noted above, the workers’ compensation structure is the sole remedy available to Plaintiff. There is no allegation of any conduct on the part of Michael Park which would take claims against him out of the exclusivity provisions of Workers’ Compensation Law §11.All other arguments made by Plaintiff and not discussed in detail herein have been considered and found unavailing.NOW, therefore, based on the foregoing, it is herebyORDERED, that the Plaintiff’s motion for summary judgment against Luke M. Park with respect to liability only on cause of action No.8 in the verified complaint is denied; and it is furtherORDERED, that the motion by Defendants for dismissal of all eight (8) causes of action stated in the verified complaint is granted.This Decision constitutes the Order of the Court.Dated: June 4, 2019Papers considered:Verified Complaint.Verified Answer.Plaintiff’s Motion for Summary Judgment filed February 27, 2019 and related Affirmations and Exhibits.Defendants’ Reply and Cross-Motion filed May 22, 2019 and related Affidavits and Exhibits. The Motion was orally argued before the Court on May 29, 2019 and Decision rendered on the record, as confirmed and detailed in this written Decision.Plaintiff’s Reply Affirmation filed May 23, 2019.Defendants’ Responding Affidavit filed May 28, 2019.
