Opinion
September 30, 1987
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Callahan, J.P., Doerr, Boomer, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs and Pennsylvania Truck Lines, Inc.'s motion granted. Memorandum: Special Term erred by denying the motion of defendant Pennsylvania Truck Lines, Inc. (PTL) to dismiss plaintiff's complaint against it. It is undisputed that plaintiff was an employee of PTL on the date that he sustained his injuries, that the Workers' Compensation Board determined that plaintiff's injuries were compensable, that plaintiff did not appeal from or move to vacate that determination, and that plaintiff accepted workers' compensation benefits. This award of compensation acts as a bar to a direct action against PTL (O'Connor v. Midiria, 55 N.Y.2d 538, 541; Werner v. State of New York, 53 N.Y.2d 346, 355).
That plaintiff characterizes this as an action commenced pursuant to FELA (Federal Employer's Liability Act) does not alter the above result. Because PTL is not a common carrier by railroad engaged in interstate commerce ( 45 U.S.C. § 51), plaintiff's action may not be pursued against it under FELA. Plaintiff's allegations that he was a joint employee of PTL and Conrail are relevant to his FELA action against Conrail (see, Kelley v. Southern Pac. Co., 419 U.S. 318, 324), but do not provide him with a remedy against PTL beyond an award of workers' compensation benefits.