Owens v. Hirth

166 A.D.2d 244

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1990
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Joseph DiFede, J.), entered on or about June 20, 1985, which, inter alia, denied defendant’s motion pursuant to CPLR 3212 for summary judgment, unanimously reversed, on the law, and defendant’s motion granted, without costs. The clerk is directed to enter judgment in favor of defendant.

In this personal injury action, plaintiff sues to recover for injuries suffered while he was performing demolition work on a building owned by defendant. The defendant had formed a corporation to carry out the renovation, and was employed as a manager by that corporation. Plaintiff collected workers’ compensation benefits arising from the same injuries from the corporation.

The documentary evidence submitted by defendant, including the papers signed by plaintiff on his claim for workers’ compensation benefits, indicates that plaintiff was employed by the corporation, and that the present action by plaintiff is an impermissible attempt to circumvent the rule barring an action against a coemployee under the Workers’ Compensation Law (Burke v Torres, 120 AD2d 283). Concur—Kupferman, J. P., Sullivan, Carro and Milonas, JJ.