Even Employees “Working Off the Books” Are Barred from Suing Employer in Tort

The Second Department determined plaintiff’s suit against his employer was barred by the Workers’ Compensation Law, even if plaintiff was “working off the books:”

Workers’ compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” … . “This precludes suits against an employer for injuries in the course of employment” … . “[W]henever it appears or will appear from a plaintiff’s pleading, bill of particulars or the facts that the plaintiff was an employee of the defendant, the obligation of alleging and, in any event, of proving noncoverage falls on the plaintiff” … .

Here, in support of their motion for summary judgment, the defendants presented evidence that the plaintiff was an employee of the defendant N.B. Painting and Decorating Corp. (hereinafter N.B. Painting), who was injured in the course of his employment, and that N.B Painting maintained a Workers’ Compensation policy on the date of the accident. Accordingly, the defendants established prima facie that the exclusivity provisions of Workers’ Compensation Law § 11 barred the plaintiff from seeking a recovery in tort against N.B. Painting … .

In opposition, the plaintiff failed to raise a triable issue of fact. “[A]ll employees of an employer are deemed covered by the employer’s workers’ compensation policy, regardless of whether an employee may have been working off the books’, where the employer has secured a policy of insurance coverage” … . De Los Santos v Butkovich, 2015 NY Slip Op 02089, 2nd Dept 3-18-15