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Calhoun v. Big Apple Wrecking Corporation

Appellate Division of the Supreme Court of New York, Second Department
Jun 18, 1990
162 A.D.2d 574 (N.Y. App. Div. 1990)

Opinion

June 18, 1990

Appeal from the Supreme Court, Queens County (Durante, J.).


Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is granted dismissing the complaint insofar as it is asserted against the defendant Big Apple Wrecking Corporation, and the action against the remaining defendant is severed.

Following an injury to the plaintiff's decedent at a construction site, the Workers' Compensation Board determined that the injury was causally related to the decedent's employment with the defendant Big Apple Wrecking Corp. (hereinafter Big Apple). The decedent's hospital expenses were eventually covered by workers' compensation. Thereafter, this negligence action was commenced against, inter alia, Big Apple. Because the workers' compensation Board determined that the decedent was entitled to workers' compensation benefits, and because those benefits were awarded, we find that summary judgment should have been granted and the complaint dismissed as against Big Apple.

It is fundamental that workers' compensation benefits are an employee's exclusive remedy when the employee is injured by the wrong of another in the same employ (Workers' Compensation Law § 29; § 2 [7]; § 11; see also, O'Connor v. Midiria, 55 N.Y.2d 538; Koizumi v. Mount Sinai Hosp., 114 A.D.2d 337). Thus, "[i]f the right to sue the employer has been stripped away by [workers'] compensation coverage, it is an arrogation of jurisdiction to consider a tort complaint on its merits" (O'Rourke v. Long, 41 N.Y.2d 219, 221). Further, determinations by the Workers' Compensation Board as to all questions of fact, including those regarding the employer-employee relationship, are final (see, Workers' Compensation Law §§ 20, 23; O'Rourke v Long, supra; Kerr v. Pike Son, 112 A.D.2d 21). Such findings are final not only because of provisions in the Workers' Compensation Law, but also due to "settled principles of res judicata which apply to administrative hearings and determinations when the agency involved is acting, as does the compensation board, in a quasi-judicial capacity" (Werner v. State of New York, 53 N.Y.2d 346, 353; see also, Samba v. Delligard, 116 A.D.2d 563; Koizumi v Mount Sinai Hosp., supra). Bracken, J.P., Kooper, Rubin and Miller, JJ., concur.


Summaries of

Calhoun v. Big Apple Wrecking Corporation

Appellate Division of the Supreme Court of New York, Second Department
Jun 18, 1990
162 A.D.2d 574 (N.Y. App. Div. 1990)
Case details for

Calhoun v. Big Apple Wrecking Corporation

Case Details

Full title:MARGARET CALHOUN, as Executrix of DONALD STERLING, Deceased, Respondent…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 18, 1990

Citations

162 A.D.2d 574 (N.Y. App. Div. 1990)
557 N.Y.S.2d 90

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