A general manager at Glenn Falls Country Club walks into the Pro Shop and takes a swing at the locker room attendant, striking him in his groin. The locker room attendant doubles over in pain; the manager laughed and walked out. The defendant described the contact as accidental and minimal and stated that the plaintiff gave no indication he had been injured. The plaintiff was seriously injured and required surgical removal of his left testicle. Is a suit between fellow employees for pain and suffering barred by the Worker’s Compensation Law?

No, says the Appellate Division Third Department in a March 2017 opinion in Montgomery v. Hackenburg, 148 A.D.3d 1329, 49 N.Y.S.3d 578 (N.Y. App. Div. 2017).

“There is no dispute that plaintiff and defendant were co-employees, that plaintiff was injured in the course of his employment and that he collected workers’ compensation benefits for his injuries. Pursuant to Workers’ Compensation Law § 29(6), these benefits are the exclusive remedy for an employee injured “by the negligence or wrong of another in the same employ.” Having the same employer is not synonymous with being “in the same employ” and, to be shielded from liability, a defendant “must himself [or herself] 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 N.Y.2d 535, 543, 429 N.Y.S.2d 622, 407 N.E.2d 466 [1980]; see Hanford v. Plaza Packaging Corp., 2 N.Y.3d 348, 350, 778 N.Y.S.2d 768, 811 N.E.2d 30 [2004] ). Here, there is no indication that plaintiff was involved in any horseplay (compare Briger v. Toys R Us, 236 A.D.2d 683, 683, 653 N.Y.S.2d 199 [1997] ). The differing versions of the event presented by the parties, as well as the two club employees who supported plaintiff’s version, raise genuine questions of fact as to whether the defendant intended to strike plaintiff and did so in an excessive manner given the sensitive area of impact. Although defendant was not directly disciplined by the club and resigned to take a new position a few months after the incident, a question of fact also remains as to whether the club condoned defendant’s actions. As such, we conclude that Supreme Court properly determined that questions of fact existed as to whether defendant acted in a “grossly negligent and/or reckless” manner when he swung the golf club shaft and struck plaintiff, as alleged in the complaint (see Shumway v. Kelley, 60 A.D.3d 1457, 1459, 876 N.Y.S.2d 299 [2009] ).”

Read the decision here.