# Mazarredo v. Levine > Appellate Division of the Supreme Court of the State of New York · June 21, 1948 · 274 A.D. 122 URL: https://www.frixlaw.com/law-library/cases/5386210 ## Case - **Full name:** Raymond Mazarredo v. Jack Levine - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** June 21, 1948 - **Citations:** 274 A.D. 122; 80 N.Y.S.2d 237 - **Precedential status:** Published - **Opinion:** Concurrence by Dore - **Judges:** Callahan, Dore - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5386210 ## Opinion text Dore, J. (concurring in result). In DeCoigne v. Ludlum Steel Company ( 251 App. Div. 662 ) the Third Department, which exclusively hears all appeals from determinations of the Workmen’s Compensation Board, held an employer liable in a common-law action by an employee for deliberate and intentional injuries committed by the employer through the agency of another coemployee. The court distinguished numerous, cases *128 relied on by pointing out that in such cases there was involved only the employee’s right to seek compensation, not his right to resort to a common-law action for damages against the employer as a deliberate and intentional wrongdoer. The court said: “No case has been called to our attention, nor has our own research disclosed any, where it has been held that one who willfully assaults a workman while in the course of his employment, be he an employee, an employer or a stranger, when sued for the tort can successfully defend on the ground that the plaintiff and his employer are subject to the Workmen’s Compensation Law, and that his sole remedy is thereunder.” (P. 665.) This court has very recently held that an employer who willfully assaults an employee may not plead his Workmen’s Compensation coverage against a common-law action by the employee against him (Le Pochat v. Pendleton, 271 App. Div. 964 , affg. 187 Misc. 296 ). Hence if this record raised a triable issue as to the willful assault by the employer’s agent in the course of his employment, the employer would be liable in a common-law action in spite of the coverage by Workmen’s Compensation. So far as such injury relates to the injured employee, it is, as to his right to assert compensation, accidental. So far as the assaulting employee or employer is concerned, the act is deliberate and intentional and not accidental. This is a rational basis on which an employee may make an election either to claim compensation or to sue at common law. But on this record plaintiff’s own papers on the employer’s motion for summary judgment exclude the conclusion that the assault occurred in the course of or arose out of the employment. In the only answering affidavit submitted on plaintiff’s behalf in opposition to the motion by the employer, it is stated that the facts relating to the assault are reserved for the trial. But on a motion for summary judgment the facts should be shown so that the court can determine the nature of the assault and whether it did in fact arise out of and in the course of employment and whether the manager, coemployee, was acting as the employer’s agent. But that is not all. Plaintiff’s attorney further swears that the ‘ ‘ assault had nothing to do with the work in which plaintiff was engaged nor had it anything to do with the work upon which the defendant, Jack Levine \_defendant’s manager], was engaged in at the time.” (Italics ours.) Accordingly, on plaintiff’s own version of the facts, Levine, the manager, who is claimed to have assaulted plaintiff, could not have been acting as defend *129 ant’s agent at the time in question. Therefore, the corporate defendant or employer may not be held liable. Solely on that ground we concur in the result to reverse and grant the employer’s motion for summary judgment. Except as indicated above, we concur with the majority opinion insofar as it relates to the appeal of the employee Levine. Peck, P. J., and Cohn, J., concur with Callahan, J.; Dore, J., concurs in result in opinion in which Van Voorhis, J., concurs. Order, so far as appealed from [by defendant employee Jack Levine] unanimously affirmed, with $10 costs and disbursements. Order .[on appeal by defendant employer, Davega-City Radios, Inc.], unanimously reversed, with $10 costs and disbursements to the appellant and the motion granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5386210. Public record. Not legal advice.