80 A.D.2d 633 | N.Y. App. Div. | 1981
In a wrongful death action, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated September 23, 1980, which (1) granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint on the ground that plaintiff’s action is barred by subdivision 6 of section 29 of the Workers’ Compensation Law, and (2) denied plaintiff’s cross motion pursuant to CPLR 3211 (subd [b]) to dismiss defendant’s second affirmative defense which alleged that plaintiff’s cause of action was barred by the aforesaid section of the Workers’ Compensation Law. Order reversed, with $50 costs and disbursements, motion denied and cross motion granted. Plaintiff’s intestate (Hirsch) and defendant’s intestate (Di Stefano) were coemployees of the East Islip School District. On June 26, 1978, Di Stefano entered Hirsch’s office and shot Hirsch to death with a shotgun. Di Stefano then went into an adjoining room and committed suicide with another shotgun. Hirsch’s widow, plaintiff herein, applied for and was ultimately awarded workers’ compensation benefits. Plaintiff then commenced this action for wrongful death. Defendant alleged as an affirmative defense that plaintiff is ineligible for such relief because workers’ compensation benefits provide the exclusive remedy to the dependents of an employee killed by the negligence or wrong of another in the same employ (see Workers’ Compensation Law, § 29, subd 6). Special Term dismissed plaintiff’s complaint on the basis of this affirmative defense. In light of the recent Court of Appeals decision in Maines v Cronomer Val. Fire Dept. (50 NY2d 535), we hold that it was error to grant summary judgment to the defendant and to dismiss the
