Zaborowski v. Roman Catholic Diocese of Brooklyn

Zaborowski v Roman Catholic Diocese of Brooklyn (2021 NY Slip Op 03866) Zaborowski v Roman Catholic Diocese of Brooklyn 2021 NY Slip Op 03866 Decided on June 16, 2021 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 16, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department HECTOR D. LASALLE, P.J. LEONARD B. AUSTIN BETSY BARROS PAUL WOOTEN, JJ. 2019-04474 (Index No. 18474/13) [*1]Bogdan Zaborowski, appellant, v Roman Catholic Diocese of Brooklyn, et al., respondents. Joseph Falbo, Jr., Mineola, NY, for appellant. Wingate, Kearney & Cullen, LLP, Brooklyn, NY (Christine N. McGuire of counsel), for respondents. DECISION & ORDER In an action to recover damages for intentional infliction of emotional distress and constructive discharge from employment, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated February 21, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs. In 2013, the plaintiff commenced this action against the defendants to recover damages allegedly sustained during his employment as a grave digger at the St. Charles Cemetery. The complaint asserted causes of action to recover damages for intentional infliction of emotional distress and constructive discharge from employment. In his complaint, the plaintiff alleged that he was compelled by the defendants, over his objections, to step on caskets during the burial process. According to the complaint, as a result of the defendants' conduct, the plaintiff sustained serious psychological injuries and was eventually compelled to resign due to the intolerable work conditions. After discovery was completed, the defendants moved for summary judgment dismissing the complaint. In an order dated February 21, 2019, the Supreme Court granted the defendants' motion. The plaintiff appeals. The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. "While an intentional tort may give rise to a cause of action outside of the ambit of the Workers' Compensation Law, the complaint must allege an intentional or deliberate act by the employer directed at causing harm to [a] particular employee" (Kruger v EMFT, LLC, 87 AD3d 717, 718-719 [internal quotation marks omitted]). Similarly, "[i]n order to maintain a cause of action [alleging] constructive discharge, a plaintiff must show that his or her employer deliberately made working conditions so intolerable that he or she was forced into involuntary resignation" (Nelson v HSBC Bank USA, 41 AD3d 445, 447). The constructive discharge test is not met if the employee is simply dissatisfied with his job assignments (see Morris v Schroder Capital Mgt. Intl., 7 NY3d 616, 622). Here, the defendants established, prima facie, that in order to remove the materials [*2]used to lower the casket into the grave, it was sometimes necessary for the grave diggers to step onto the caskets, and that all grave diggers were required to do so when necessary. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion in the absence of any triable issues of fact regarding whether the defendants engaged in conduct intentionally directed at causing harm to the plaintiff (see Miller v Huntington Hosp., 15 AD3d 548, 549; Orzechowski v Warner-Lambert Co., 92 AD2d 110, 112-113), or whether the defendants deliberately made the plaintiff's working conditions intolerable (see Morris v Schroder Capital Mgt. Intl., 7 NY3d at 622). In light of the foregoing, we need not address the parties' remaining contentions. LASALLE, P.J., AUSTIN, BARROS and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court