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Baseball Wallop in the Office|Is Fit for a Lawsuit

(CN) - A New York man can take a co-worker to trial for allegedly hitting him in the face with a baseball, a state appeals court ruled.

Joshua Johnson filed a personal-injury lawsuit against Jorge Del Valle over the incident, which allegedly took place while the men were working together.

After Del Valle moved for summary judgment, a judge in Onondaga County concluded that Johnson could not seek relief outside workers' compensation.

The Appellate Division's Rochester-based Fourth Department decided otherwise.

"Workers' compensation is the exclusive remedy of an employee injured 'by the negligence or wrong of another in the same employ,'" the unsigned opinion states, quoting the Workers' Compensation Law.

"The words 'in the same employ' as used in the Workers' Compensation Law are not satisfied simply because both the plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must ... have been acting within the scope of his or her employment and not have been engaged in an intentional tort," the justices added.

In remanding the case for trial, the justices said Johnson had submitted evidence that Del Valle's alleged behavior was "neither common nor condoned" in the workplace.

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