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Supreme Court, Appellate Division, Fourth Department, New York.

Joseph M. BABCOCK, Respondent, v. Andrew J. LAMB, Appellant.

Decided: February 04, 1998

Before PINE, J.P., and LAWTON, WISNER, CALLAHAN and BOEHM, JJ. Law Office of Bernard M. Byrne, Sandra Sabourin by Thomas Carafa, Liverpool, for Defendant-Appellant. Durr and Keinz by Donald Keinz, Utica, for Plaintiff-Respondent.

 Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint in this personal injury action.   Plaintiff seeks to avoid the exclusivity provisions of the Workers' Compensation Law by alleging that defendant was neither his employer nor a coemployee and that defendant's act of negligence in supplying a van with defective tires was not the act of a coemployee.   In support of his motion for summary judgment, defendant submitted deposition testimony and other documentary evidence establishing that he and his wife were partners who co-owned the flower shop where plaintiff was employed and that plaintiff was injured in the course of his employment while delivering flowers.   In addition, defendant submitted uncontroverted proof that plaintiff applied for and received workers' compensation benefits through his employer's workers' compensation carrier.

 With limited exceptions not relevant here, workers' compensation is the sole and exclusive remedy available to an employee injured during the course of his employment as against his employer (see, Workers' Compensation Law § 11;  O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347;  Mera v. Adelphi Mfg. Co., 160 A.D.2d 781, 782, 553 N.Y.S.2d 826;  Martin v. Casagrande, 159 A.D.2d 26, 28-29, 559 N.Y.S.2d 68, lv. dismissed 76 N.Y.2d 1018, 565 N.Y.S.2d 767, 566 N.E.2d 1172).   Moreover, where, as here, an employee applies for and accepts workers' compensation benefits, he is deemed to have elected his remedy and thereby forfeits his right to proceed by way of an action for common-law tort (see, Cunningham v. State of New York, 60 N.Y.2d 248, 469 N.Y.S.2d 588, 457 N.E.2d 693;  O'Connor v. Midiria, 55 N.Y.2d 538, 450 N.Y.S.2d 455, 435 N.E.2d 1070;  Werner v. State of New York, 53 N.Y.2d 346, 441 N.Y.S.2d 654, 424 N.E.2d 541;  Riggins v. Stong, 238 A.D.2d 950, 661 N.Y.S.2d 170;  Mera v. Adelphi Mfg. Co., supra, at 782, 553 N.Y.S.2d 826;  Martin v. Casagrande, supra, at 29-30, 559 N.Y.S.2d 68).   The workers' compensation defense precludes plaintiff from bringing this negligence action against a member of the partnership that was his employer (see, Williams v. Hartshorn, 296 N.Y. 49, 69 N.E.2d 557;  Baksh v. Yassky, 195 A.D.2d 356, 357, 600 N.Y.S.2d 65;  see also, Heritage v. Van Patten, 59 N.Y.2d 1017, 1019, 466 N.Y.S.2d 958, 453 N.E.2d 1247).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.


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