RIGGINS v. STONG

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

Tyrone RIGGINS, Appellant, v. Wilbert E. STONG, Respondent.

Decided: April 25, 1997

Before DENMAN, P.J., and GREEN, CALLAHAN, BALIO and BOEHM, JJ. Krenzer & Galliher, P.C. by Cyril Krenzer, Honeoye Falls, for Appellant. Harris Beach & Wilcox by James Gocker, Rochester, for Respondent.

 Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint on the ground that the action is barred by the exclusivity provisions of the Workers' Compensation Law (see, Workers' Compensation Law § 11).   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 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;  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, 29-30, 559 N.Y.S.2d 68, lv. dismissed 76 N.Y.2d 1018, 565 N.Y.S.2d 767, 566 N.E.2d 1172).   Furthermore, an employee may not bring a common-law action against his employer as the owner of the property where the job-related injury occurred (Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 158-159, 432 N.Y.S.2d 879, 412 N.E.2d 934, rearg. denied 52 N.Y.2d 829, 437 N.Y.S.2d 1030, 418 N.E.2d 694;  Adams v. Benderson Dev. Co., 207 A.D.2d 1024, 617 N.Y.S.2d 108).   We have no authority to condition defendant's entitlement to summary judgment upon the requirement that defendant satisfy the judgment awarded in the workers' compensation proceeding.

Order unanimously affirmed without costs.

MEMORANDUM: