Citation Numbers: 23 A.D.3d 431, 808 N.Y.S.2d 93
Filed Date: 11/14/2005
Status: Precedential
Modified Date: 11/1/2024
Ordered that the order is affirmed, with costs.
Although the defendants’ motion for summary judgment was technically premature since issue had not yet been joined (see CPLR 3212 [a]), under the particular facts of this case, where the plaintiff was clearly on notice that the motion was made pursuant to CPLR 3212, submitted opposition papers thereto, and “ ‘deliberately charter[ed] a summary judgment course,’ ” the Supreme Court properly entertained the motion (Hickey v Travelers Ins. Co., 158 AD2d 112, 114 [1990], quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320 [1987]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:12, at 21).
On the merits, the Supreme Court correctly granted the motion dismissing the complaint (see Workers’ Compensation Law § 29 [6]). The plaintiff and the defendant Thomas J. Karthaus were acting within the scope of their employment, as co-employees, at the time of the subject accident (see Macchirole v Giamboi, 97 NY2d 147, 150 [2001]; Roman v Ainechi, 15 AD3d 562 [2005]). Thus, workers’ compensation is the plaintiff’s exclusive remedy and she is barred from maintaining this action.
The plaintiffs remaining contentions are without merit. H. Miller, J.P., Krausman, Rivera and Dillon, JJ., concur.