14 Misc. 2d 362 | N.Y. Sup. Ct. | 1958
The defendant Bandforce Amusement Corp. has moved, pursuant to rule 113 of the Buies of Civil Practice, for summary judgment dismissing the complaint, on the ground that its second affirmative defense — a plea of res judicata — is sufficient as a matter of law, the defense being founded on proof by documents and official records.
The plaintiff then instituted this action charging the defendant Randforce (as operator of the theatre) and also the defendant Nelrach Theatres, Inc. (the owner of the theatre) with negligence in maintaining the premises where the alleged accident took place and in causing the occurrence. The complaint pleads that the accident occurred on or about December 8,1953, and the bill of particulars sets the time of the happening at 4 o’clock on December 8. It is evident from a reading of the transcript of the minutes of the hearing before the Workmen’s Compensation
That in one instance the ruling reads that there was ‘ ‘ no industrial accident ’ ’ and in others that there was ‘ ‘ no accident ’ ’ is a seeming semantic confusion that need not concern or detain us. On all of the documents before me I have come to the conclusion that the finding of the board was that there was no accident — either within or without the scope of the claimant’s employment — and that the use of the word “industrial” was merely a routine formalism, expressing, in the circumstances here, that the claimant was unable to recover in pursuance of the Workmen’s Compensation Law. Under the issues pleaded and litigated, under the facts presented and controverted, before the board, it is clear that the plaintiff would have been entitled to workmen’s compensation if there w'as an accident at all. Therefore, the holding — if such it was — that there was no “industrial” accident, could mean only that no accident whatever had occurred.
The substantive question urged upon me by the plaintiff on this submission is whether a decision of the Workmen’s Compensation Board stating* that no accident occurred and denying compensation to the plaintiff for an injury can be pleaded in bar of the plaintiff’s common-law action in negligence for the same injury. I agree with the contention of the plaintiff that “ [t]he determinations of the Workmen’s Compensation Board are final and conclusive upon the parties only as to issues within its jurisdiction ” (Matter of Weiss v. Franklin Square & Munson Fire Dist., 309 N. Y. 52, 55) and that the duty of the board is to determine whether there is an “ injury arising out of and in the course of the employment ” (Workmen’s Compensation Law, § 10). But the further argument of the plaintiff that the finding that there was no accident at all was beyond the board’s powers and, therefore, not res judicata is a non sequitur.
Karameros v. Luther (279 N. Y. 87 — not cited by counsel), gave me some pause on first reading, but, upon study, I find the case to be quite distinguishable from the one at bar. The issue there was whether a finding of marriage in a separation ■suit grounded upon cruelty (and which action was dismissed because of absence of proof of cruelty) was res judicata of the issue of the validity of the marriage in a subsequent annulment action based upon incapacity to enter into the marriage. It is clear that the alleged cruelty relied upon as a ground for separation was completely separable from the fact of marriage.
That is true whether the claim is dismissed or an award granted the claimant. The Workmen’s Compensation Board had jurisdiction to determine all material facts which have such a relation to the issue that their determination was necessary to the decision of the issue. The fact of the accident was such a material fact, and indeed it was the material issue litigated before the board. In Matter of Levy v. American Furniture-Jewelry Corp. (286 App. Div. 1052) there was a serious conflict between the testimony of the claimant and his witnesses and the employer’s insurance carrier and its witnesses on the issue of the happening of the accident. The board disbelieved the claimant and found that no such accident occurred. The court stated that “ [t]his was a permissible conclusion for the board to reach upon the whole record.” Similarly, in the case at bar, it is plain that if there were in fact no accident, there would be no need further to inquire (before the board) into the assertion that the alleged accident arose out of and in the course of the claimant’s employment, or to inquire (before the court) into the plaintiff’s allegation that the claimed accident occurred because of the negligence of the defendant. In my view, whether or not an accident occurred is an “ essential fact ” put in issue in both proceeding and action (Silberstein v. Silberstein, 218 N. Y. 525,528).
The happening of the accident to the claimant was controverted by the employer and placed directly in issue before the
In sum, I hold that the determination of the board that there was no accident was within its competence, and, as such, it is res judicata of the plaintiff’s action at law against his employer, based upon the allegation that there was an accident in fact. In consequence, the defendant’s motion for summary judgment dismissing the complaint is granted.
Settle order.