Gyory v. Radgowski

• Decision Date: 09 August 1982
• Citation: 453 N.Y.S.2d 243,89 A.D.2d 867
• Parties: Frank GYORY et al., Appellants, v. Edward RADGOWSKI et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 243

453 N.Y.S.2d 243

89 A.D.2d 867

Frank GYORY et al., Appellants, v. Edward RADGOWSKI et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Aug. 9, 1982.

Issler & Schrage, P. C., New York City (Harry Issler, New York City, of counsel), for appellants.

Stanley Roth, Siff & Newman, P. C., New York City (Louis G. Adolfsen, L. Kevin Sheridan and Thomas R. Newman, New York City, of counsel), for respondents.

Before TITONE, J. P., and LAZER, O'CONNOR and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County, dated April 29, 1981, 109 Misc.2d 439, 440 N.Y.S.2d 151, which (1) denied their motion (a) to dismiss the defendants' second affirmative defense, (b) for summary judgment on the issue of liability, or (c) in the alternative, to restore the action to the trial calendar, and (2) dismissed the complaint.

Order reversed, without costs or disbursements, and the matter is remitted to Special Term with instructions to refer the case to the Workers' Compensation Board for a factual hearing to determine whether plaintiff Frank Gyory has a viable third-party action.

This is a negligence action brought to recover damages for personal injuries sustained by the plaintiff husband, Frank Gyory, as a result of an automobile accident which occurred on August 28, 1973, in Dayton, Ohio, and for loss of services, society and consortium claimed by the plaintiff wife, Marianne Gyory. The complaint, verified October 15, 1973, alleges that the plaintiff husband was a passenger in a vehicle operated by the defendant Edward Radgowski and owned by the defendant Hertz Corporation, and that the vehicle was caused to leave the road and strike a pole.

Defendants' answer, as amended, interposed a general denial and two affirmative defenses: (1) application of the Ohio Guest Statute, limiting the liability of the owner and operator of an automobile to liability for gross negligence only; and (2) invocation of the Workers' Compensation Law as plaintiffs' exclusive remedy, on the ground that plaintiff Frank Gyory and defendant Radgowski were coemployees acting within the scope of their employment at the time of the accident.

By notice of motion dated March 1, 1974, plaintiffs moved for an order dismissing both affirmative defenses. With respect to the defense of workers' compensation, plaintiff Frank Gyory explained that he was employed as an engineer by Fairchild Republic Company of Farmingdale, New York; that on August 28, 1973, he flew to Dayton in connection with his employment in order to attend a conference scheduled for that afternoon; that he intended to fly back to New York the same evening, but discovered in the early afternoon that he could not accomplish as much as he had anticipated and therefore continued the conference for the following day; that at the conference he coincidentally met a coemployee, defendant Edward Radgowski, who was there for a business purpose other than the plaintiff's conference; that on the evening of August 28, he and Radgowski drove, in their respective cars, to a motel to stay overnight; that they decided to have dinner together, and defendant Radgowski took his car because he knew the location of the restaurant; that they did not discuss work during dinner; and that the accident occurred on the trip back to the motel.

According to an examination before trial of defendant Radgowski, the car that he was driving had been rented by his employer in Radgowski's name; that Radgowski, employed as a ground tester by Fairchild, had arrived in Dayton on August 27; that he attended the conference on August 28; that he had worked with the plaintiff on some projects; and that work was discussed during dinner.

Attached to the opposition papers was a sworn affidavit of the supervisor of workers' compensation claims for the Fireman's Fund American Insurance Co., stating that the company had issued a workers' compensation policy to Fairchild; that the company received a claim from Fairchild concerning the August 28 accident; that the company did not controvert the claim, but commenced, on September 7, 1973, the issuance of checks payable to plaintiff Frank Gyory representing compensation payments; and that all of these checks were subsequently returned to the company by said plaintiff without being cashed.

In a memorandum decision dated September 24, 1974, Justice LAZER, then sitting at Special Term, held that the motion to dismiss should be granted as to the defendants' first affirmative defense concerning the Ohio Guest Statute, but denied as to the workers' compensation defense.

On appeal (Gyory v. Radgowski, 48 A.D.2d 832, 833, 368 N.Y.S.2d 275), this court affirmed the denial of the motion to dismiss the workers' compensation defense stating:

"Since the record in the case at bar does not make clear Fairchild's instructions to its employees relating to their activities in Ohio and, more specifically, whether plaintiff Frank Gyory's decision to extend the conference an extra day was expressly or impliedly authorized, Special Term properly found that the question of whether workmen's compensation is the exclusive remedy must await a determination after trial."

In a decision dated January 22, 1975, the plaintiff husband's claim for disability benefits was denied based upon a referee's finding that the "accident and the resulting injuries arose out of and during the course of his employment." This determination was affirmed by a panel of three members of the New York State Workers' Compensation Board on November 5, 1976.

This case was reached for trial at the Supreme Court, Suffolk County, before Justice ORGERA in July of 1979. On July 3, 1979, after the parties had opened to the jury, the trial court sua sponte declared a mistrial and struck the action from the trial calendar with leave to the plaintiffs to "make a motion to amend pleadings and to restore the action to the calendar after a proper proceeding before the Workmen's Compensation Board has determined the threshold issues that would grant this Court the right to try the tort liability aspect of this case."

In a letter dated August 13, 1979, the attorney for the plaintiffs requested that the board set the matter down for a hearing to review the decision made after the original disability benefits hearing of...