Moakler v. Blanco
| Decision Date | 20 February 1975 |
| Parties | William MOAKLER, Plaintiff-Respondent, v. Robert BLANCO, etc., et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
S. L. Aronson, Brooklyn, for plaintiff-respondent.
R. J. Furey, Jr., Hempstead, for defendants-appellants.
Before STEVENS, J.P., and MARKEWICH, TILZER, CAPOZZOLI and NUNEZ, JJ.
Order, Supreme Court, New York County, entered January 11, 1974, denying defendants' motion for summary judgment, unanimously reversed, on the law, without costs and without disbursements, the motion granted and the complaint dismissed.
The record does not present any issue of fact necessitating a trial. Regardless of whether defendants' or plaintiff's version of the events is believed, there is no indication that the revolver was discharged as a result of a willful or intentional act. Not only did the defendants contend that the gun was accidentally discharged, but plaintiff also stated in his examination before trial, that the accident occurred while Blanco was 'fooling around with the gun'. Indeed, the complaint and the bill of particulars rest upon allegations of negligence and do not allege an intentional act. Accordingly, since it was established that the injuries arose out of and in the course of employment (see Brozovich v. Hotel Pennsylvania, 259 N.Y. 514, 182 N.E. 160; Lang v. Franklin Ry. Supply Co., 272 App.Div. 988, 73 N.Y.S.2d 1) through a co-employee's negligence, Workmen's Compensation is the exclusive remedy and plaintiff is barred from suit against the employer or the fellow-employee (Workmen's Compensation Law § 29, subd. 6; Naso v. Lafata, 4 N.Y.2d 585, 589, 176 N.Y.S.2d 622, 625, 152 N.E.2d 59, 61; Garcia v. Iserson, 42 A.D.2d 776, 346 N.Y.S.2d 572; Geller v. Sherman, 48 Misc.2d 1049, 266 N.Y.S.2d 671, aff'd 28 A.D.2d 959, 282 N.Y.S.2d 937, aff'd 21 N.Y.2d 976, 290 N.Y.S.2d 204, 237 N.E.2d 364).
Additionally, since a Workmen's Compensation award was made, such constitutes a finding that plaintiff's injuries arose out of and in the course of employment and is binding and conclusive until vacated or modified by direct proceedings under the Workmen's Compensation law. (Durso v. Modern Biscuit Corp., 11 A.D.2d 1036, 1037, 205 N.Y.S.2d 923, 925; Pigott v. Field, 10 A.D.2d 99, 197 N.Y.S.2d 648; Doca v. Federal Stevedoring Co., 280 App.Div. 940, 941, 116 N.Y.S.2d 25, 26, aff'd 305 N.Y. 648, 112 N.E.2d 424.)
We also note that even after this action was begun and after plaintiff was examined before trial, he processed his Workmen's Compensation claim and...
To continue reading
Request your trial
-
Maines v. Cronomer Valley Fire Dept., Inc.
...200 Misc. 308, 102 N.Y.S.2d 514, affd. 279 App.Div. 1030, 113 N.Y.S.2d 240, affd. 305 N.Y. 660, 112 N.E.2d 763; Moakler v. Blanco, 47 A.D.2d 614, 364 N.Y.S.2d 528; Durso v. Modern Biscuit Corp., 11 A.D.2d 1036, 1037, 205 N.Y.S.2d 923) all infer that a common-law action by an injured employe......
-
Guida v. Rivera Investigations, Inc.
...443 [1980] ). In other words, defendant's conduct constituted a simple lack of reasonable care, i.e., negligence (see Moakler v. Blanco , 47 A.D.2d 614, 614, 364 N.Y.S.2d 526 [1st Dept. 1975] ), and "[t]he Workers’ Compensation Law ... offers the only remedy for injuries caused by the coemp......
-
Stine v. Weiner
...when such employee is injured or killed by the negligence or wrong of another in the same employ.' In Moakler v. Blanco, 47 A.D.2d 614, 364 N.Y.S.2d 526, 527--528 (1975), the Appellate Division of the New York Supreme Court applied the New York Workmen's Compensation Law to a suit based upo......
-
Werner v. State, 57226
...only the question decided was within its jurisdiction (Friedl v. Hennard, 66 A.D.2d 1024, 1025, 411 N.Y.S.2d 731; Moakler v. Blanco, 47 A.D.2d 614, 364 N.Y.S.2d 526; Restatement, Judgments 2d § 131, Comment i).3 The generally more substantial recovery in a common-law action is the price the......