MIROE v. Newsday, Inc., third-party defendant-appellant. (2000)

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), dated April 22, 1999, as denied his cross motion for summary judgment dismissing the complaint, and the third-party defendant separately appeals, as limited by its brief, from so much of the same order as denied its motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion and cross motion are granted, and the complaint and the third-party complaint are dismissed.

One who has received workers' compensation benefits is barred from commencing an action against a fellow employee who was acting within the scope of his or her employment at the time of the injury (see, Workers' Compensation Law § 29 [6];  Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 543, 429 N.Y.S.2d 622, 407 N.E.2d 466).   As the defendant was acting within the scope of his employment at the time of the accident (see, Matter of Husted v. Seneca Steel Serv., 41 N.Y.2d 140, 391 N.Y.S.2d 78, 359 N.E.2d 673), the plaintiffs' action is barred, and the third-party action for contribution and indemnification becomes academic.   In any event, the third-party action should have been dismissed as the injured plaintiff did not suffer a “grave injury” (Workers' Compensation Law § 11).

MEMORANDUM BY THE COURT.