Seemangall v. Canada Dry Bottling Co. of New York

• Decision Date: 06 June 1994
• Citation: 614 N.Y.S.2d 273,205 A.D.2d 522
• Parties: Tillak SEEMANGALL, et al., Appellants, v. CANADA DRY BOTTLING CO. OF NEW YORK, etc., Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 273

614 N.Y.S.2d 273

205 A.D.2d 522

Tillak SEEMANGALL, et al., Appellants, v. CANADA DRY BOTTLING CO. OF NEW YORK, etc., Respondent, et al., Defendant.

Supreme Court of New York, Appellate Division,

Second Department.

June 6, 1994.

Neal S. Spector, Garden City, for appellants.

Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Brian W. McElhenny, of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Graci, J.), dated June 17, 1992, which granted the motion of the defendant Canada Dry Bottling Co. of New York for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that the plaintiffs are foreclosed from bringing this action because the plaintiff Tillak Seemangall applied for and received workers' compensation benefits (see, O'Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455, 435 N.E.2d 1070; Deutsch v. Great Atlantic & Pacific Tea Co., Inc., 89 A.D.2d 597, 452 N.Y.S.2d 469).

MANGANO, P.J., and BALLETTA, O'BRIEN, HART and FLORIO, JJ., concur.