Opinion
February 16, 1989
Appeal from the Supreme Court, Warren County (Dier, J.).
Plaintiff commenced this action under Labor Law § 240 (1) to recover for injuries sustained in a work-related accident. Defendant asserted as an affirmative defense that plaintiff's exclusive remedy was under the Workers' Compensation Law. During the pendency of the action, plaintiff applied for workers' compensation benefits. After a hearing, a Workers' Compensation Law Judge determined that the accident arose out of plaintiff's employment by defendant and accordingly made an award of benefits. This determination was neither appealed nor modified. Defendant moved for summary judgment dismissing the complaint; Supreme Court granted the motion. Plaintiff appeals.
We affirm. A claimant who applies for, is awarded and accepts workers' compensation benefits is barred from maintaining an action against the employer (see, Cunningham v State of New York, 60 N.Y.2d 248, 251; Werner v State of New York, 53 N.Y.2d 346, 348-349; St. Andrews v Lucarelli, 115 A.D.2d 155). The decision in the workers' compensation proceeding that plaintiff's injuries arose out of and in the course of his employment by defendant is, pursuant to Workers' Compensation Law § 23, final and conclusive unless modified or reversed on appeal (see, Cunningham v State of New York, supra) or upon reconsideration (see, Werner v State of New York, supra, at 352, n 2). Accordingly, defendant's motion for summary judgment dismissing the complaint was properly granted.
Order affirmed, with costs. Kane, J.P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.