Hyland v. Herman H. Schwartz, Inc.

281 A.D. 1044, 121 N.Y.S.2d 611, 1953 N.Y. App. Div. LEXIS 4275

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1953
• Status: Published

Opinion

Action to recover damages for personal injuries alleged to have been sustained on December 2, 1948, by plaintiff, an employee of a general contractor, through the negligence of defendant, a subcontractor of plaintiff’s employer. The Workmen’s Compensation Board, on February 3, 1949, made an award to plaintiff, and he accepted benefits thereunder. He instituted this action on October 24, 1949, more than six months after the making of the award. Defendant’s answer contains a defense that plaintiff is not the real party in interest because of the assignment of his cause of action, by operation of law, to some other person or corporation or organization. Defendant moved for summary judgment, to which plaintiff submitted no proof whatever in opposition. Plaintiff appeals from the order granting defendant’s motion for summary judgment. Order affirmed, without costs. As plaintiff accepted compensation under an award of the Workmen’s Compensation Board made on February 3, 1949, and did not commence this action until October 24, 1949, more than six months after the award had been made, the motion for summary judgment was properly granted, (Workmen’s Compensation Law, § 29; Carter v. Brooklyn Ladder Co., 265 App. Div. 39.) In any event, plaintiff did not submit an affidavit or other proof in opposition to the motion. (Rules Civ. Prac., rule 113.) Carswell, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur.