BLESSINGER v. ESTEE LAUDER COMPANIES INC (1998)

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered July 1, 1997, which denied third-party defendant's motion to dismiss the third-party complaint as barred by Workers' Compensation Law § 11, as amended by section 2 of the Omnibus Workers' Compensation Reform Act of 1996 (L.1996, ch. 635) (the “Act”), unanimously affirmed, without costs.

The issue is whether the Act, which extinguishes the right to contribution from a plaintiff's employer, except in limited circumstances not present here, bars a third-party action for contribution against the employer that was commenced after September 10, 1996, the effective date of the Act, where the employee's underlying action for personal injuries was commenced before September 10, 1996.   We hold that the Act does not bar such a third-party action.   Much as the Second Department in Morales v. Gross, 230 A.D.2d 7, 657 N.Y.S.2d 711, in holding that a third-party action commenced before September 14, 1996 was not barred (see also, Majewski v. Broadalbin-Perth Central School Dist., 231 A.D.2d 102, 661 N.Y.S.2d 293), “disagreed with the assertion that the right to contribution is not a significant or matured right merely because the third-party plaintiff has not yet, and may never, recover anything on its claim” (at 13, 657 N.Y.S.2d 711), we disagree with the assertion that the right to contribution is not a significant or matured right until a third-party action has been commenced.   It is the substantive right to contribution that the Act extinguishes prospectively, not the procedural vehicle for realizing that right.   We also find support for this result in the legislative debates (see, Transcript of New York State Assembly Proceedings, Bill No. (H) 11331, Rules Report No. 1546, Committee on Rules, July 12, 1996, at 618).

MEMORANDUM DECISION.