Gyory v. Radgowski

48 A.D.2d 832, 368 N.Y.S.2d 275, 1975 N.Y. App. Div. LEXIS 10042

Opinion

In a negligence action to recover damages for personal injuries, etc., the parties cross-appeal from an order of the Supreme Court, Suffolk County, entered November 4, 1974, as follows: (1) plaintiffs appeal from so much of the said order as denied their motion to dismiss the second affirmative defense and (2) defendants appeal from so much of the said order as (a) dismissed their first affirmative defense and (b) failed to grant them summary judgment. Order affirmed, without costs. Since the record in the case at bar does not make clear Fairchild’s instructions to its employees relating to their activities in Ohio and, more specifically, whether plaintiff Frank Gyory’s decision to extend the conference an extra day was expressly or impliedly authorized, Special Term properly found that the question of whether workmen’s compensation is the exclusive remedy must await a determination after trial. Rabin, Acting P. J., Hopkins, Martuscello, Brennan and Shapiro, JJ., concur.