Gyory v. Radgowski

• Decision Date: 29 April 1981
• Citation: 109 Misc.2d 439,440 N.Y.S.2d 151
• Parties: Frank GYORY and Marianne Gyory, Plaintiffs, v. Edward RADGOWSKI and the Hertz Corp., Defendants.
• Court: New York Supreme Court

Page 151

440 N.Y.S.2d 151

109 Misc.2d 439

Frank GYORY and Marianne Gyory, Plaintiffs, v. Edward RADGOWSKI and the Hertz Corp., Defendants.

Supreme Court, Special Term Suffolk County, Part I.

April 29, 1981.

Issler & Schrage, P.C., New York City, for plaintiffs.

Curtis, Hart & Zaklukiewicz, Merrick, for defendants.

VICTOR J. ORGERA, Justice.

ORDERED that this motion to dismiss the second affirmative defense of defendants alleging that plaintiffs' exclusive remedy is under the Workers' Compensation Law and for summary judgment, or, in the alternative, restoring the action to the Trial Calendar is denied.

Plaintiff Frank Gyory and defendant Radgowski, as employees of Fairchild Hiller, were sent to Ohio on their employer's business. While there, Gyory was injured when the car rented by the employer from defendant Hertz and driven by Radgowski ran off the road. The employer's workers' compensation carrier issued compensation checks to Gyory, who returned them uncashed.

On a prior motion to dismiss the same defense, the Appellate Division, in affirming Special Term, ruled that the question of whether workers' compensation is the exclusive remedy must await a trial of the action. Gyory v. Radgowski, 48 A.D.2d 832, 368 N.Y.S.2d 275.

When the matter came on for trial, it was determined that there was no issue that Gyory and Radgowski were both employed by the same employer or that the employer had workers' compensation insurance. The issue as to whether the plaintiff was acting in the course of his employment at the time of the accident was not, however, determined because of the ruling of O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347, which held that the unavailability of workers' compensation benefits is a matter which must be pleaded and proved by the plaintiff. As the plaintiff had neither alleged nor proven the unavailability of compensation benefits, the court declared a mistrial, struck the case from the trial calendar, but granted leave to the plaintiffs to amend their pleadings and to restore upon a determination by the Workers' Compensation Board that compensation benefits were not available.

Thereafter, according to the affidavit of the plaintiffs' attorney, a Worker's Compensation hearing was held on December 5, 1980, resulting in the plaintiffs' claim being disallowed and the case marked closed. In support of this statement is a Workers' Compensation Board Notice of Decision form which recites: "Decision: Case was Closed. Claim Disallowed." Not included in the plaintiffs' papers, but now supplied by the defendant without objection, is an abstract of the minutes of the hearing before Judge Camoia. When the judge asked the plaintiff if he wished to make a compensation claim, the plaintiff responded, "No, Sir." The judge refused to rule on the issues because the plaintiff "is not pursuing the claim. No one can force him to pursue a workmen's compensation claim if he doesn't want one." Later he said "the case was...