Miroe v. Miroe

270 A.D.2d 400, 705 N.Y.S.2d 62, 2000 N.Y. App. Div. LEXIS 2978

Opinion

—In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (De-Maro, J.), dated April 22, 1999, as denied his cross motion for summary judgment dismissing the complaint, and the third-party defendant separately appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the third-party complaint.

Ordered that the order is reversed, on the law, with one bill of costs, the motion and cross motion are granted, and the complaint and the third-party complaint are dismissed.

One who ,has received workers’ compensation benefits is barred from commencing an action against a fellow employee who was acting within the scope of his or her employment at the time of the injury (see, Workers’ Compensation Law § 29 [6]; Maines v Cronomer Val. Fire Dept., 50 NY2d 535, 543). As the defendant was acting within the scope of his employment at the time of the accident (see, Matter of Husted v Seneca Steel Serv., 41 NY2d 140), the plaintiffs’ action is barred, and the third-party action for contribution and indemnification becomes academic. In any event, the third-party action should have been dismissed as the injured plaintiff did not suffer a “grave injury” (Workers’ Compensation Law § 11). Santucci, J. P., Krausman, Florio and Schmidt, JJ., concur.