Opinion
July 5, 1960
In an action brought by an employee against his corporate employer and a fellow employee to recover damages for an assault committed by such fellow employee, the employer appeals from an order of the Supreme Court, Westchester County, dated June 26, 1958, denying its motion for summary judgment dismissing the complaint as to it (Rules Civ. Prac., rule 113). Order reversed, with $10 costs and disbursements; motion granted; and complaint dismissed as against the employer, defendant Lakeland Air Conditioning Sheet Metal Corp. In view of the outstanding award of compensation to plaintiff, and his acceptance of payments thereunder, he is precluded from bringing this action ( Doca v. Federal Stevedoring Co., 280 App. Div. 940, affd. 305 N.Y. 648; Matter of Doca v. Federal Stevedoring Co., 308 N.Y. 44; Pigott v. Field, 10 A.D.2d 99; Burgess v. Tryde Mfg. Co., 20 Misc.2d 875; see, also, Legault v. Brown, 283 App. Div. 303). Nolan, P.J., Beldock, Ughetta and Christ, JJ., concur; Kleinfeld, J., not voting.