Burgess v. Tryde Manufacturing Co.

20 Misc. 2d 875, 195 N.Y.S.2d 519, 1960 N.Y. Misc. LEXIS 3827

Opinion

Harry E. Schirick, J.

This is a motion by the defendant Tryde Manufacturing Co. for summary judgment. The action is brought to recover damages for assault alleged to have been committed by such defendant through its supervisory employee, the defendant Freibrun.

The alleged assault occurred in the course of plaintiff’s employment. In due course the defendant Tryde notified its compensation carrier and an accident number and a Workmen’s Compensation Board case number were assigned to the claim. Payments were made by the carrier to the plaintiff and accepted by her. 'A notice of hearing was received by plaintiff but she did not attend. The matter was heard and a decision rendered awarding compensation in the sum previously paid to and accepted by the plaintiff.

Under such circumstances the employee’s right to maintain a common-law action for assault is lost and the jurisdiction of the Workmen’s Compensation Board becomes exclusive (Meaney v. Keating, 200 Misc. 308, affd. 279 App. Div. 1030, affd. 305 N. Y. 660; Doca v. Federal Stevedoring Co., 305 N. Y. 648; Matter of Doca v. Federal Stevedoring Co., 308 N. Y. 44).

The motion is granted.