§ 11 — Alternative remedy

New York § 11

• Jurisdiction: New York
• Law WKC: Workers' Compensation
• Art. 2: Compensation

Text

§ 11. Alternative remedy. 1. The liability of an employer prescribed\nby the last preceding section shall be exclusive and in place of any\nother liability whatsoever, to such employee, his or her personal\nrepresentatives, spouse, parents, dependents, distributees, or any\nperson otherwise entitled to recover damages, contribution or indemnity,\nat common law or otherwise, on account of such injury or death or\nliability arising therefrom, except that if an employer fails to secure\nthe payment of compensation for his or her injured employees and their\ndependents as provided in section fifty of this chapter, an injured\nemployee, or his or her legal representative in case of death results\nfrom the injury, may, at his or her option, elect to claim compensation\nunder this chapter, or to maintain an action in the courts for damages\non account of such injury; and in such an action it shall not be\nnecessary to plead or prove freedom from contributory negligence nor may\nthe defendant plead as a defense that the injury was caused by the\nnegligence of a fellow servant nor that the employee assumed the risk of\nhis or her employment, nor that the injury was due to the contributory\nnegligence of the employee. The liability under this chapter of The New\nYork Jockey Injury Compensation Fund, Inc. created under section two\nhundred twenty-one of the racing, pari-mutuel wagering and breeding law\nshall be limited to the provision of workers' compensation coverage to\njockeys, apprentice jockeys, exercise persons, and at the election of\nthe New York Jockey Injury Compensation Fund, Inc., with the approval of\nthe New York state gaming commission, employees of licensed trainers or\nowners licensed under article two or four of the racing, pari-mutuel\nwagering and breeding law and any statutory penalties resulting from the\nfailure to provide such coverage.\n For purposes of this section the terms "indemnity" and "contribution"\nshall not include a claim or cause of action for contribution or\nindemnification based upon a provision in a written contract entered\ninto prior to the accident or occurrence by which the employer had\nexpressly agreed to contribution to or indemnification of the claimant\nor person asserting the cause of action for the type of loss suffered.\n An employer shall not be liable for contribution or indemnity to any\nthird person based upon liability for injuries sustained by an employee\nacting within the scope of his or her employment for such employer\nunless such third person proves through competent medical evidence that\nsuch employee has sustained a "grave injury" which shall mean only one\nor more of the following: death, permanent and total loss of use or\namputation of an arm, leg, hand or foot, loss of multiple fingers, loss\nof multiple toes, paraplegia or quadriplegia, total and permanent\nblindness, total and permanent deafness, loss of nose, loss of ear,\npermanent and severe facial disfigurement, loss of an index finger or an\nacquired injury to the brain caused by an external physical force\nresulting in permanent total disability.\n For purposes of this section "person" means any individual, firm,\ncompany, partnership, corporation, joint venture, joint-stock\nassociation, association, trust or legal entity.\n The liability under this chapter of the New York black car operators'\ninjury compensation fund, inc. shall be limited to: (i) securing the\npayment of workers' compensation in accordance with article six-F of the\nexecutive law to black car operators, as defined in such article, whose\ninjury arose out of and in the course of providing services for a\ncentral dispatch facility, as defined in such article, that is a\nregistered member of such fund, and (ii) any statutory penalty resulting\nfrom the failure to secure such payment. The liability under this\nchapter of a central dispatch facility, as defined in article six-F of\nthe executive law, that is a registered member of the New York black car\noperators' injury compensation fund, inc. that shall be limited to\nremaining a registered member in good standing of such fund and any\nstatutory penalty, including loss of immunity provided by this section,\nresulting from the failure to become or remain a registered member in\ngood standing of such fund, except, however, that such central dispatch\nfacility shall be subject to the provisions of section one hundred\nthirty-one of this chapter and shall be liable for any payments for\nwhich it may become responsible pursuant to such section or pursuant to\nsection fourteen-a of this article.\n The liability under this chapter of the New York independent livery\ndriver benefit fund, inc. shall be limited to: (i) securing the payment\nof workers' compensation coverage to cover those matters required by\narticle six-G of the executive law for independent livery drivers, as\ndefined in such article, whose injury arose out of and in the course of\nproviding covered services for a livery base, as defined in such\narticle, that is a registered member of such fund, and (ii) any\nstatutory penalty resulting from the failure to secure such payment.\n 2. Determination by the board shall not be given collateral estoppel\neffect in any other action or proceeding arising out of the same\noccurrence, other than the determination of the existence of an employer\nemployee relationship.\n