Nelson v. Buffalo Niagara Electric Corp.

264 A.D. 941, 36 N.Y.S.2d 205, 1942 N.Y. App. Div. LEXIS 5435

Opinion

Order reversed on the law, with ten doHars costs and disbursements, and motion granted, without costs. Memorandum: We think the six months’ Statute of Limitations (Workmen’s Comp. Law, § 29, subd. 1), began to run on November 14, 1940, when the first award of compensation was made to and accepted by plaintiff. (Schubert v. Finkelstein, 244 N. Y. ; Lunn v. Andrews, 268 id. 538, 539; Carter v. Brooklyn Ladder Co., Inc., 175 Misc. 920; Hession v. Sari Corp., 283 N. Y. 262, 265.) Inasmuch as the plaintiff’s action was not commenced within six months from that date, such cause of action became the property of the person, corporation or fund which paid the compensation. (Workmen’s Comp. Law, § 29, subd. 2.) Plaintiff, therefore, lacks capacity to sue (Civ. Prac. Act, § 210; see, also, Waite Nursery & Development Co. v. Just, 266 N. Y. 496) and the motion to dismiss the complaint should have been granted. All concur. (The order denies defendant’s motion to dismiss plaintiff’s complaint in a negligence action.) Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.