EANS v. Frank Pelegrino, etc., et al., Respondents. (2000)

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Shaw, J.), dated June 29, 1999, which granted those branches of the respective motions of the defendants Frank Pelegrino and Atlas Material Co., Inc., which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, and (2) an order of the same court (Pincus, J.), dated February 23, 2000, which denied his motion for reargument.

ORDERED that the appeal from the order dated February 23, 2000, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated June 29, 1999, is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

Having applied for and accepted workers' compensation benefits, the plaintiff forfeited any right he might have had to bring an action grounded in common-law tort against his employers.   Accordingly, the Supreme Court properly granted those branches of the respondents' separate motions which were to dismiss the complaint insofar as asserted against them (see, DiSpigna v. Lutheran Med. Center Parking, 170 A.D.2d 645, 567 N.Y.S.2d 69).   Moreover, the plaintiff failed to present any evidence sufficient to impose personal liability on the part of the defendant Frank Pelegrino (cf., Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 140, 603 N.Y.S.2d 807, 623 N.E.2d 1157).

MEMORANDUM BY THE COURT.