Timperio v. Bronx-Lebanon Hosp.

203 A.D.3d 179

163 N.Y.S.3d 302

In the Matter of the Claim of Justin TIMPERIO, Appellant,

v.BRONX–LEBANON HOSPITAL et al., Respondents.

Workers’ Compensation Board, Respondent.

533584

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 12, 2022

Decided and Entered: February 3, 2022

Law Offices of Arnold N. Kriss, New York City (Arnold N. Kriss of counsel), for appellant.

Weiss, Wexler & Wornow, PC, New York City (J. Evan Perigoe of counsel), for Bronx–Lebanon Hospital and another, respondents.

Letitia James, Attorney General, New York City (Nina M. Sas of counsel), for Workers’ Compensation Board, respondent.

Before: Lynch, J.P., Clark, Aarons and Reynolds Fitzgerald, JJ.

Reynolds Fitzgerald, J. Appeal from a decision of the Workers’ Compensation Board, filed January 27, 2021, which ruled, among other things, that Justin Timperio sustained an injury arising out of and in the course of his employment.

On June 30, 2017, Henry Bello, a physician who had worked for the Bronx–Lebanon Hospital (hereinafter the hospital) from August 2014 until his resignation in February 2015 following an allegation that he had sexually harassed a hospital employee, entered the hospital wearing a white doctor's coat and a hospital identification badge and carrying, among other things, a loaded AR–15 rifle. In addition to setting fire to the hospital's sixteenth floor nursing station using a juice container filled with gasoline, Bello shot Justin Timperio, who was a first-year medical resident at that time,¹ shot and killed another doctor and shot and wounded four other members of the medical staff in addition to a patient. Timperio was shot in the abdomen, and the bullet exited his right thigh, requiring a hospital admission, surgical procedures and treatment. After the mass shooting, Bello shot and killed himself. In July 2017, the hospital and its workers’ compensation carrier, the State Insurance Fund, filed a First Report of Injury form indicating that a former employee had shot Timperio while Timperio was performing his normal work duties and that his injuries required emergency surgery. The Workers’ Compensation Board filed and mailed a Notice of Case Assembly, as well as a follow-up notice, to Timperio's last known address notifying him that a workers’ compensation claim had been opened on his behalf, but the correspondence was returned without delivery.

In March 2018, Timperio filed a civil action in the United States District Court for the Southern District of New York (hereinafter the federal action) against the hospital, alleging causes of action for negligence, negligent infliction of emotion distress and negligent hiring, retention, training and supervision. Motion practice ensued, and, in an April 2019 memorandum opinion, the District Court (Gardephe, J.) denied the hospital's motion for summary judgment, finding, as relevant here, that Timperio's injuries did not arise out of and in the course of his employment because there was no evidence that the shooting originated in work-related differences ( Timperio v. Bronx–Lebanon Hosp. Ctr., 384 F. Supp. 3d 425, 432–433 [S.D. N.Y.2019] ).² In May 2019, the hospital moved in District Court for an order certifying an interlocutory appeal or, in the alternative, for a stay pending the resolution of the proceedings before the Board; the District Court granted the request for a stay but denied the balance of the motion ( Timperio v. Bronx–Lebanon Hosp. Ctr., 2020 WL 8996683, *1, 3, 2020 U.S. Dist LEXIS 41589 [S.D. N.Y., Mar. 9, 2020, No. 18–CV–1804 (PGG)] ).

Following April, May and September 2020 hearings before a Workers’ Compensation Law Judge (hereinafter WCLJ) to determine whether the Board had the authority and jurisdiction – in light of the federal action – to adjudicate the compensability of the claim, the WCLJ found that the Board has primary jurisdiction over the claim, established the claim for a gunshot wound to the abdomen and set Timperio's average weekly wage for purposes of awarding temporary indemnity benefits. Upon administrative review, the Workers’ Compensation Board affirmed, finding initially that it is not precluded or estopped by the federal action to address the compensability of the claim and, secondly, that Timperio failed to rebut the presumption that the attack occurred during the course of his employment, as the assault occurred while he was working in a non-public area within the hospital, was perpetrated by a former employee, and was not motivated by personal animosity. Timperio appeals.

For the reasons that follow, we agree with the Board that it should have determined the issue at hand in the first instance and that it is not estopped from doing so but find, however, that Timperio did not sustain an injury arising out of and in the course of his employment. We therefore reverse. "It is axiomatic that an employee injured during his or her employment is limited in his or her remedy to workers’ compensation [benefits] unless the injury was due to an intentional tort perpetrated by the employer or at the employer's direction" ( Vasquez v. McGeever, 1 A.D.3d 767, 768, 766 N.Y.S.2d 625 [2003] [internal quotation marks and citations omitted]; see Workers’ Compensation Law §§ 11, 29[6] ; Weiner v. City of New York, 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 [2012] ; Bello v. City of New York, 178 A.D.3d 648, 649, 115 N.Y.S.3d 98 [2019] ; Owens v. Jea Bus Co., Inc., 161 A.D.3d 1188, 1189, 77 N.Y.S.3d 141 [2018] ; Wilson v. A.H. Harris & Sons, Inc., 131 A.D.3d 1050, 1051, 16 N.Y.S.3d 589 [2015], lv denied 26 N.Y.3d 914, 2015 WL 8816776 [2015] ). Indeed, "primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the ... Board[,] and ... it is therefore inappropriate for the courts to express views with respect thereto pending determination by the [B]oard" ( Botwinick v. Ogden, 59 N.Y.2d 909, 911, 466 N.Y.S.2d 291, 453 N.E.2d 520 [1983], citing O'Rourke v. Long, 41 N.Y.2d 219, 224, 391 N.Y.S.2d 553, 359 N.E.2d 1347 [1976] ; see Liss v. Trans Auto Sys., Inc., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986] ; Vasquez v. McGeever, 1 A.D.3d at 768, 766 N.Y.S.2d 625 ; Besaw v. St. Lawrence County Assn. for Retarded Children, 301 A.D.2d 949, 950, 754 N.Y.S.2d 111 [2003] ; Corp v. State of New York, 257 A.D.2d 742, 743, 682 N.Y.S.2d 738 [1999] ). Here, the mixed question of fact and law that is raised concerning whether Timperio sustained an injury arising out of and in the course of his employment is unquestionably a matter for the Board to decide in the first instance (see O'Rourke v. Long, 41 N.Y.2d at 228, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; Nunes v. Window Network, LLC, 54 A.D.3d 834, 835, 863 N.Y.S.2d 815 [2008] ; Melo v. Jewish Bd. of Family & Children's Servs., Inc., 282 A.D.2d 440, 441, 722 N.Y.S.2d 419 [2001] ; Corp v. State of New York, 257 A.D.2d at 743, 682 N.Y.S.2d 738 ), and its findings in this regard are "final and conclusive unless reversed on direct appeal, and are not subject to collateral attack in a plenary action" ( Aprile–Sci v. St. Raymond of Penyafort R.C. Church, 151 A.D.3d 671, 673, 55 N.Y.S.3d 421 [2017] [internal citation omitted]; accord Matter of Rosa v. June Elec. Corp., 140 A.D.3d 1353, 1357, 34 N.Y.S.3d 654 [2016], lv denied 28 N.Y.3d 910, 2016 WL 7364766 [2016] ; see Cunningham v. State of New York, 60 N.Y.2d 248, 252, 469 N.Y.S.2d 588, 457 N.E.2d 693 [1983] ; Alfonso v. Lopez, 149 A.D.3d 1535, 1536, 52 N.Y.S.3d 780 [2017] ).

Moreover, we reject Timperio's contention that the Board was collaterally estopped or otherwise precluded from adjudicating the compensability of the claim based upon the District Court's prior finding that Timperio's injuries did not occur within the course of his employment. "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ; accord Wilson v. City of New York, 161 A.D.3d 1212, 1216, 78 N.Y.S.3d 363 [2018] ). "Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits" ( Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015] [internal quotation marks omitted]; see CitiMortgage, Inc. v. Ramirez, 192 A.D.3d 70, 72, 136 N.Y.S.3d 572 [2020] ; Emmons v. Broome County, 180 A.D.3d 1213, 1216, 119 N.Y.S.3d 273 [2020] ). However, "[w]hen no order or final judgment has been entered on a verdict or decision, or when the judgment is subsequently vacated, collateral estoppel is inapplicable" ( Church v. New York State Thruway Auth., 16 A.D.3d 808, 810, 791 N.Y.S.2d 676 [2005] ; accord Miller v. Moore, 101 A.D.3d 1510, 1511, 957 N.Y.S.2d 484 [2012] ; see Matter of McGrath v. Gold, 36 N.Y.2d 406, 411, 369 N.Y.S.2d 62, 330 N.E.2d 35 [1975] ; Rudd v. Cornell, 171 N.Y. 114, 127–128, 63 N.E. 823 [1902] ; Ruben v. American & Foreign Ins. Co., 185 A.D.2d 63, 65, 592 N.Y.S.2d 167 [1992] ; see also Jeffrey's Auto Body, Inc. v. Allstate Ins. Co., 159 A.D.3d 1481, 1482–1483, 72 N.Y.S.3d 692 [2018] ; Gadani v. DeBrino Caulking Assoc., Inc., 86 A.D.3d 689, 692, 926 N.Y.S.2d 724 [2011] ). Even assuming for the sake of argument that it was proper for Timperio in the federal action to litigate, and for the District Court to decide, in the first instance, the question of whether Timperio sustained an injury arising out...