Braxton v. City of Yonkers

278 A.D.2d 266, 718 N.Y.S.2d 182, 2000 N.Y. App. Div. LEXIS 12958

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 2000
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Rudolph, J.), entered July 10, 2000, which denied its motion to dismiss the amended complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the amended complaint is dismissed.

In view of the undisputed evidence that the plaintiff received benefits for his injury pursuant to General Municipal Law § 207-c, his cause of action in the amended complaint based on General Municipal Law § 205-e is barred (see, Nieves v City of Yonkers, 268 AD2d 412; O’Hare v City of New Rochelle, 249 AD2d 375; Damiani v City of Buffalo, 198 AD2d 814; O’Dette v Barton, 190 AD2d 1074; see also, Betendree v City of Yonkers, 270 AD2d 403). Since the plaintiffs common-law negligence cause of action was properly dismissed by prior order of the Supreme Court, entered May 18, 1999 (see, Braxton v City of Yonkers, 278 AD2d 265 [decided herewith]), the defendant’s motion to dismiss the amended complaint in its entirety should have been granted. O’Brien, J. P., Santucci, H. Miller and Schmidt, JJ., concur.