Opinion
February 22, 1982
In a negligence action to recover damages for personal injuries, the Hertz Corporation appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated June 29, 1981, which denied its motion for summary judgment dismissing the complaint as to it. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed as to the appellant. The plaintiff, a mechanic employed by defendant the Hertz Corporation, was repairing a truck owned by Hertz which it had leased to codefendant Productive Trucking Company. Plaintiff, while acting in the course of his employment in front of Hertz' garage, asked the operator of the truck (who was employed by Productive) to start the motor. The operator did so, but neglected to place the gearshift in neutral. As a result the truck moved forward and struck plaintiff, injuring him. The plaintiff received compensation payments totaling $9,048.72 from the compensation insurance carrier and thereafter commenced the present action to recover damages for his personal injuries. He named as defendants the operator of the truck, the latter's employer Productive, and his own employer Hertz on the theory of liability as owner of the truck (see Vehicle and Traffic Law, § 388, subd 1). Hertz moved for summary judgment on the ground that plaintiff's action against it was barred because he had recovered benefits under the workers' compensation statute, and since that was his full and exclusive remedy, his derivative action against the owner of the vehicle is barred. In these circumstances, it was error to deny the motion (see Tolbert v. Wagner, 70 A.D.2d 936). Titone, J.P., Mangano, Weinstein and O'Connor, JJ., concur.