58 A.D.2d 752 | N.Y. App. Div. | 1977
Order, Supreme Court, New York County, entered December 1, 1976, which denied defendant’s motion for summary judgment, unanimously reversed, on the law, the motion granted and the complaint dismissed, without costs and without disbursements. In this negligence action for damages for personal injuries, defendant moved for summary judgment on the ground that plaintiff, at the time of his alleged injury, was defendant’s employee (Workmen’s Compensation Law, § 11). Plaintiff opposed, alleging that at the time of the accident he was an employee not of defendant, but of Casting Group, Inc. However, having submitted a claim against defendant pursuant to the Workmen’s Compensation Law and having accepted the benefits provided by an award thereunder, plaintiff may not now maintain an action for negligence against defendant, alleging that he was at the time of his injury the employee of another. Since a workmen’s compensation award was made, such constitutes a finding that plaintiff’s injuries arose out of and in the course of employment and is binding and conclusive until vacated or modified by direct proceedings under the Workmen’s Compensation Law (Durso v Modern Biscuit Corp., 11 AD2d 1036, 1037; Pigott v Field, 10 AD2d 99, 100; Doca v Federal Stevedoring Co., 280 App Div 940, 941, affd 305 NY 648). Concur—Kupferman, J. P., Lupiano, Evans and Markewich, JJ.