WHITMORE v. Great Atlantic & Pacific Tea Company, third-party defendant-respondent. (1999)

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated August 26, 1998, which, upon reargument, granted the motion of the third-party defendant to dismiss the third-party complaint, which motion had previously been denied by order of the same court dated September 3, 1997.

ORDERED that the order is reversed, on the law, with costs, and the motion for reargument is denied.

The Supreme Court erred in dismissing the third-party action pursuant to the Omnibus Worker's Compensation Reform Act (Workers' Compensation Law § 11, L. 1996, ch. 635, as amended) (hereinafter the Act).   While the third-party action was commenced after the effective date of the Act, the main action was commenced by the plaintiffs before the effective date.   Accordingly, the Act does not bar the third-party action (see, Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 590, 673 N.Y.S.2d 966, 696 N.E.2d 978;  see also, Browning v. County Fence Company, 259 A.D.2d 578, 686 N.Y.S.2d 491;  Esposito v. Bob Iko Excavation, 258 A.D.2d 555, 683 N.Y.S.2d 895;  Maher v. Whitehead, 254 A.D.2d 263, 678 N.Y.S.2d 271;  Blessinger v. Estee Lauder Cos., 246 A.D.2d 363, 668 N.Y.S.2d 16;  Caponi v. Great Atlantic and Pacific Tea Co., 177 Misc.2d 47, 49, 675 N.Y.S.2d 822).

MEMORANDUM BY THE COURT.