75 Misc. 2d 523 | N.Y. Sup. Ct. | 1973
The issue for determination is whether workmen’s compensation is the exclusive remedy in a medical malpractice and negligence action where it is alleged that plaintiff’s intestate was a company employee and the defendant a company physician and therefore fellow-employees. The motion is brought pursuant, to subdivision (c) of CPLR 3211 and the affirmative defense of workmen’s compensation is pleaded.
The decedent was a chemist executive employed by the Pepsi Cola Company. The defendant is a licensed physician employed
Subdivision 6 of section 29 of the Workmen’s Compensation Law provides, ‘ ‘ The right to compensation or benefits * * * shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ.” The injury or death referred to must be “ accidental ” and “ arising out of and in the course of employment”. (Workmen’s Compensation Law, § 2, subd. 7; also § 10.) In this action there is no claim of willful or wanton misconduct on the part of the defendant. It must therefore be concluded that the death was “ accidental ” within the meaning of the Workmen’s Compensation Law (Matter of Masse v. Robinson Co., 301 N. Y. 34). Moreover, the death arose out of or in the course of decedent’s employment. The medical services of which he availed himself were provided by the company. The establishment and availability of a medical department providing better working conditions for employees is, of course, in furtherance of the company’s business. It is at the very least for the mutual advantage of the employee and employer. Where an act of an employee has a dual purpose or benefit both to the employer and employee it may be regarded as arising out of and in the course of employment. (Matter of Huhn v. Gehnrich Indirect Heat Oven Co., 250 N. Y. 568, employee injured while traveling for medical treatment; Matter of Caney v. Straight, 274 App. Div. 1077, employee injured during rest period; Matter of Lauterbach v. Jarett, 189 App. Div. 303, employee injured during recreational activities; Matter of Sexton v. Public Serv. Comm. of City of N. Y., 180 App. Div. 111, employee injured while bathing after performing dirty manual labor.)
Since the claim is for accidental death arising out of decedent’s employment and allegedly caused by the negligence of a fellow-employee, workmen’s compensation is the exclusive remedy. (Garcia v. Iserson, 42 A D 2d 776; also, see, Bergen v. Miller, 104 N. J. Super. 350; Jones v. Bouza, 381 Mich. 299.)
The case of Roloff v. Arabian Amer. Oil Co. (421 F. 2d 240), urged by the plaintiff, relies upon the New York cases of Volk v. City of New York (284 N. Y. 279); Robison v. State of New York (266 App. Div. 1054, affd. 292 N. Y. 631) and Siversten v. State of New York (19 N Y 2d 698). These cases have been distinguished from the instant ease in that the injuries therein received were not the result of an incident of employment. (Garcia v. Iserson, 42 A D 2d 776, supra.) (Also, see, Young v. International Paper Co., 282 App. Div. 750; Balancio v. United States, 267 F. 2d 135.)
This action is clearly prohibited by the Workmen’s Compensation Law. Accordingly, the motion is granted and the complaint dismissed.