McMillan v. Notre Dame Residence Club, Inc.
| Citation | 227 N.Y.S.2d 811,33 Misc.2d 948 |
| Parties | Louise McMILLAN, Plaintiff, v. NOTRE DAME RESIDENCE CLUB, INC., Defendant. |
| Decision Date | 16 April 1962 |
| Court | United States State Supreme Court (New York) |
Weisstein & Weisstein, New York City, for plaintiff.
Starkman & Fine, New York City (Herbert L. Fine, New York City, trial counsel), Trial Attorneys of plaintiff.
Tropp & Steinbock, New York City (Milton Steger, New York City, of counsel), for defendant.
This is an action to recover for personal injuries. Defendant, plaintiff's employer, at the opening of the trial, moved to dismiss the complaint on the ground that the accident arose out of and in the course of plaintiff's employment and that plaintiff's sole remedy was under the Workmen's Compensation Law. In its answer the defendant has pleaded the same matter as an affirmative defense.
The salient facts are not in dispute. On February 7, 1961, plaintiff, employed as a maid by defendant residence club, finished her tour of duty shortly after 4:00 P.M., changed into her street clothes, visited with a friend at defendant's premises for about a half hour and, as she was departing from the building at about 5:00 P.M., was caused to fall on the from steps thereof. The employer's (defendant's) report of the accident (Form C2) contains nothing therein to indicate that the accident happened outside the scope of plaintiff's employment. However, the defendant's compensation carrier on March 3, 1961, controverted the claim, stating, .
Hearings were scheduled and rescheduled by the Workmen's Compensation Board for June 26, 1961, August 28, 1961, October 2, 1961 and November 13, 1961. Claimant did not appear at any of these hearings nor did she press her claim for compensation.
In the interim, the present action which was commenced in May, 1961, having appeared on the ready day calendar, the Workmen's Compensation Board, at its November 13 hearing, marked the case closed and undetermined, pending the outcome of this action.
Plaintiff contends that defendant is estopped by the action of its compensation carrier from now contending that the accident arose out of and in the course of plaintiff's employment.
There is nothing to indicate that the defendant itself authorized the State Insurance Fund to oppose plaintiff's claim for compensation or that defendant itself ever took the position that the accident did not arise out of and in the course of plaintiff's employment. In these circumstances, defendant is entitled to be heard in the compensation proceeding in opposition to the position taken by its compensation carrier (Pigott v. Field, 13 A.D.2d 350, 215 N.Y.S.2d 925). In that case, the Appellate Division of this department recognized that the self-interest of the compensation carrier in defeating the compensation claim was in conflict with the employer's interest in having it allowed so that the employer might escape liability in a common-law action (p. 354, 215 N.Y.S.2d p. 928). Since defendant is still free, if it has not already done so, to request an opportunity to be heard in the compensation proceeding in opposition to the position taken by its compensation carrier, a claim at this time that defendant is estopped by its compensation carrier's plea from defending this action, is premature. This case is to be distinguished from Baker v. Matthews, 8 A.D.2d 585, 183 N.Y .S.2d 569, where the employer had permitted the compensation proceeding to be concluded without indicating that it opposed the contention of its compensation carrier that the accident did not arise out of or in the course of the plaintiff's employment. It was to such a situation that the court referred when it said 'the defendant may well be estopped * * * from now asserting the contrary'.
Plaintiff's attorney...
To continue reading
Request your trial
-
O'Rourke v. Long
...against the * * * defendant would lie. In either event plaintiff is adequately protected.' (McMillan v. Notre Dame Residence Club, 33 Misc.2d 948, 950--951, 227 N.Y.S.2d 811, 814 (Markowitz, J.), emphasis in original; see, generally, Ann., 84 A.L.R.2d 1036.) Indeed, plaintiff would have six......
-
Liss v. Trans Auto Systems, Inc.
...before the Board (Cunningham v. State of New York, 60 N.Y.2d 248, 252, 469 N.Y.S.2d 588, 457 N.E.2d 693; McMillan v. Notre Dame Residence Club, 33 Misc.2d 948, 951, 227 N.Y.S.2d 811). If a plaintiff fails to do so, the court should not express an opinion as to the availability of compensati......
-
Pollock v. City of New York
...has no choice but to litigate this issue before the Board (Cunningham v. State of New York, 60 NY2d 248, 252 McMillan v. Notre Dame Residence Club, 33 Misc 2d 948, 951 ). If a plaintiff fails to do so, the court should not express an opinion as to the availability of compensation but remit ......
-
Liss v. Trans Auto Systems, Inc.
...employer to be heard ..." (O'Rourke v. Long, supra, at 228, 391 N.Y.S.2d 553, 359 N.E.2d 1347, quoting McMillan v. Notre Dame Residence Club, 33 Misc.2d 948, 950-951, 227 N.Y.S.2d 811, emphasis in original). Since there was no "opportunity ... afforded to the employer to be heard" in this c......