General

Palmira L. O'Brien et al., Respondents, v. Daniel F. Ashley et al., Appellants

202 A.D.2d 944609 N.Y.S.2d 460·New York Supreme Court, Appellate Division·1994·NY

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Opinion

Palmira L. O’Brien et al., Respondents, v Daniel F. Ashley et al., Appellants. [609 NYS2d 460] [MAJORITY] —Appeal from an order of the Supreme Court (Spain, J.), entered June 17, 1993 in Albany County, which denied defendants’ motion for summary judgment dismissing the complaint. In this personal injury action involving employees of the New York State Division of Military and Naval Affairs, defendants sought summary judgment on the basis that plaintiffs’ claim is barred by the exclusivity provisions of Workers’ Compensation Law §29 (6). In our view, Supreme Court correctly denied this motion. Defendants failed to demonstrate as a matter of law for purposes of this motion that plaintiff Palmira L. O’Brien’s status as a National Guard technician established that she was a special employee of the State. Supreme Court also aptly noted that plaintiffs’ papers in opposition raised other factual issues that must be resolved at trial. Cardona, P. J., Mercure, White, Weiss and Peters, JJ., concur. Ordered that the order is affirmed, with costs.