TASSONE v. HAGGAR APPAREL COMPANY

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

Vincent TASSONE, et al., Plaintiffs, v. HAGGAR APPAREL COMPANY, et al., Defendants.

Haggar Apparel Company and McCurdy & Company, Inc., Third-Party Plaintiffs-Appellants, v. Minnesota Mining and Manufacturing Company, Third-Party Defendant-Respondent.

Decided: March 31, 1999

Present:  GREEN, J.P., PINE, WISNER, SCUDDER and CALLAHAN, JJ. Cynthia Anne Constantino, Rochester, for third-party defendant-respondent. Rachna Vaid, Rochester, for third-party plaintiffs-appellants.

 Supreme Court erred in granting third-party defendant's motion for summary judgment dismissing the third-party complaint.   The 1996 amendment to Workers' Compensation Law § 11 (see, L.1996, ch. 635, § 2) does not apply retroactively to bar the third-party action (see, Regensdorfer v. Central Buffalo Project Corp., 247 A.D.2d 931, 933, 668 N.Y.S.2d 291;  Massella v. Partner Indus. Prods., 242 A.D.2d 870, 665 N.Y.S.2d 948).   Further, the release given by Vincent Tassone (plaintiff) to third-party defendant does not relieve third-party defendant from liability to third-party plaintiffs for contribution pursuant to General Obligations Law § 15-108(b).   That section applies to releases “given to one of two or more persons liable or claimed to be liable in tort for the same injury” (General Obligations Law § 15-108[a] ).   As plaintiff's employer, third-party defendant cannot be held liable in tort;  its liability under the Workers' Compensation Law is “exclusive and in place of any other liability whatsoever” (Workers' Compensation Law § 11;  see, Gonzales v. Armac Indus., 81 N.Y.2d 1, 9, 595 N.Y.S.2d 360, 611 N.E.2d 261).   Thus, plaintiff had no tort claim against third-party defendant that could be released, and General Obligations Law § 15-108(b) does not bar the third-party action for contribution.

Order unanimously reversed on the law with costs, motion denied and third-party complaint reinstated.

MEMORANDUM: