         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
987
CA 12-00576
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


JOSHUA JOHNSON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JORGE DEL VALLE, DEFENDANT-RESPONDENT.


THE MATHEWS LAW FIRM, SYRACUSE (DANIEL F. MATHEWS, III, OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ROBERT P. CAHALAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered November 3, 2011 in a personal injury
action. The order granted the motion of defendant for summary
judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained at work when defendant, plaintiff’s coemployee,
allegedly threw a baseball that struck plaintiff’s face. Defendant
moved for summary judgment dismissing the complaint on the ground that
workers’ compensation is plaintiff’s exclusive remedy, and Supreme
Court granted the motion. We reverse. Workers’ compensation is the
exclusive remedy of an employee injured “by the negligence or wrong of
another in the same employ” (Workers’ Compensation Law § 29 [6]).
“[T]he words ‘in the same employ’ as used in the Workers’ Compensation
Law are not satisfied simply because both plaintiff and defendant have
the same employer; a defendant, to have the protection of the
exclusivity provision, must . . . have been acting within the scope of
his [or her] employment and not have been engaged in a willful or
intentional tort” (Maines v Cronomer Val. Fire Dept., 50 NY2d 535,
543). Even assuming, arguendo, that defendant met his initial burden
on the motion, we conclude that plaintiff raised a triable issue of
fact with respect thereto (see generally Zuckerman v City of New York,
49 NY2d 557, 562). Here, plaintiff raised a triable issue of fact
“whether the actions of defendant were within the scope of his
employment by submitting evidence that defendant’s conduct was neither
common nor condoned” in their workplace (Cloutier v Longo, 288 AD2d
942, 942; see Maines, 50 NY2d at 544-545; Shumway v Kelley, 60 AD3d
1457, 1459; cf. generally Lowe v Kinn, 199 AD2d 743, 744-745, lv
                                -2-                  987
                                               CA 12-00576

denied 83 NY2d 753).




Entered:   September 28, 2012         Frances E. Cafarell
                                      Clerk of the Court
