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Feliciano-Delgado v. New York Hotel Trades Council3/22/2001
equence of her duties as an employee. Nor may plaintiff succeed with the argument that Workers' Compensation is not available because she did not suffer an injury but was instead suffering from a medical condition.
The "work related" element is satisfied by the "nexus" between the plaintiff's employment and the employer's provision of medical services not available to the public (see, Firestein, supra). There is no requirement that the medical condition upon which a negligent treatment claim is based must be an "injury," or that it must be a direct consequence of the plaintiff's employment duties (see, e.g., Garcia v Iserson, 33 NY2d 421, supra [negligent injection for treatment of cold]; Woods v Dador, 187 AD2d 648 [failure to diagnose heart attack]; Marange v Slivinski, 257 AD2d 427, supra [failure to diagnose breast cancer]).
Parenthetically, any failure to plead a Workers' Compensation affirmative defense is not dispositive at this time. The affirmative defense of Workers' Compensation may be waived "only by a defendant ignoring the issue to the point of final disposition itself" (Murray v City of New York, 43 NY2d 400, 407; see also, Goodarzi v City of New York, 217 AD2d 683, lv denied 87 NY2d 803). This Court, in examining the pleadings on a motion for summary judgment, may take into account an unpleaded defense (see, Triboro Coach Corp. v State of New York, 88 AD2d 202, 204).
Finally, plaintiff contends that the motion was premature because appellants had yet to be deposed, asserting the need to inquire as to their employment status. This suggestion implies that despite the individual defendants' affidavits stating that they are salaried part-time employees of the Health Center, their status may in fact be that of independent contractors rather than employees. Plaintiff adds that depositions were also needed to determine the conditions under which the Health Center would provide care not just to the union members for whose benefit it was created, but also to its employees.
However, it has not been shown how defendants' depositions would add anything to the facts relevant to the determination of the Workers' Compensation issue. It is unquestioned that the services of the individual defendants were offered to plaintiff at her employer's facility and paid for by her employer as an employee benefit, and that these services were not available to the general public but were limited to members of hotel and restaurant industry union locals and Health Center employees. Regardless of the exact legal relationship between the Health Center and the individual defendants, as long as "the doctors' professional services were offered and paid for by the employer," as they were here, they are covered by the fellow employee rule (see, Marange v Slivinski, 257 AD2d 427, 428, supra).
Plaintiff fails to explain how discovery is needed on the proposed issue of the conditions under which the Health Center offered treatment to its employees.
For the foregoing reasons, we conclude that the Workers' Compensation Law bars this action.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 22, 2001
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