Mnich v. American Radiator Co.
| Decision Date | 25 November 1942 |
| Citation | 289 N.Y. 681,45 N.E.2d 333 |
| Parties | Lawrence MNICH, Respondent, v. AMERICAN RADIATOR CO., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department, 263 App.Div. 573, 34 N.Y.S.2d 16.
Action by Lawrence Mnich against the American Radiator Company for silicosis contracted by plaintiff in defendant's employment. The plaintiff alleged that the last injurious exposure and the last employment forming the basis of the cause of action occurred prior to September 1, 1935.
The defendant filed an affidavit that at all times it had provided workmen's compensation insurance coverage for its employees including, since September 1, 1935, coverage for silicosis and other dust diseases. Silicosis first became compensable on September 1, 1935, by Group 28 of subdivision 2 of section 3 of the Workmen's Compensation Law, Consol.Laws, c. 67 ().
The trial court granted defendant's motion for summary judgment on the ground that the plaintiff's remedy was under the Workmen's Compensation Law which remedy was exclusive. The Appellate Division, 263 App.Div. 573, 34 N.Y.S.2d 16, reversed the judgment on the ground that the amendment of the Workmen's Compensation Act making silicosis compensable did not apply to a right of action which vested before the amendment became effective. Thereafter the Appellate Division, 264 App.Div. 828, 35 N.Y.S.2d 600, denied a motion for reargument and granted defendant's motion for leave to appeal to the Court of Appeals and certified questions for review, and the defendant appeals from the order of the Appellate Division reversing the judgment.
The following questions were certified:
‘1. Is plaintiff's remedy solely and exclusively under the Workmen's Compensation Law?
Order affirmed and questions certified answered.
Order affirmed with costs. First question certified answered in the negative. Second question certified answered in the affirmative.
All concur.
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