IN RE: the Claim of Angela ZATZ

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

IN RE: the Claim of Angela ZATZ, Appellant, v. Willy MOSCOVICI et al., Respondents. Workers' Compensation Board, Respondent.

Decided: February 25, 1999

Before:  MERCURE, J.P., CREW III, PETERS, SPAIN and CARPINELLO, JJ. Sankel, Skurman & McCartin LLP (Michele Kahn of counsel), New York City, for appellant.

Appeal from a decision of the Workers' Compensation Board, filed August 12, 1997, which ruled that claimant made an election of remedies under Workers' Compensation Law § 11 and is barred from pursuing a workers' compensation claim.

Claimant was injured on June 12, 1988 in the course of her employment with Plaza Medical, Surgical & Diagnostic P.C. (hereinafter the employer);  she immediately filed an application for workers' compensation benefits.   Ultimately, the Workers' Compensation Board notified claimant that its file contained information indicating that she “may have sustained an injury while working for a non-insured employer” and that she could, at her option, maintain an action in the courts for damages on account of said injury (see, Workers' Compensation Law § 11).   Claimant thereafter commenced a negligence action against the employer in Supreme Court, Kings County.   During the pendency of the civil action, claimant obtained several adjournments of the workers' compensation proceeding, apparently for the purpose of obtaining a stipulation discontinuing the civil action.   By decision filed June 11, 1992, the workers' compensation case was closed until such time that claimant could produce notice that the civil action had been discontinued.   Then, by order entered July 27, 1992, Supreme Court granted summary judgment in favor of the employer (among others) dismissing the civil action upon the basis of the exclusivity provision of Workers' Compensation Law § 11.1  Claimant subsequently sought to reopen the compensation case but the Board ultimately determined that, in pursuing the civil action to judgment, claimant had made a binding election of remedies under Workers' Compensation Law § 11, thereby barring her compensation claim.   Claimant appeals.2

We conclude that, in light of the undisputed facts presented here, the Board's decision to deny claimant the remedy of a workers' compensation claim was contrary to established caselaw, illogical, unduly harsh and, in fact, antithetical to the economic and humanitarian objectives of the Workers' Compensation Law. We accordingly reverse the Board's decision and remit the matter for further proceedings.

Pursuant to Workers' Compensation Law § 11, “if an employer fails to secure the payment of compensation * * * an injured employee * * * may, at his or her option, elect to claim compensation * * * or to maintain an action in the courts for damages on account of such injury”.   A claimant cannot, however, have the benefit of both remedies.   As recognized by the Court of Appeals in Matter of Martin v. C.A. Prods. Co., 8 N.Y.2d 226, 230, 203 N.Y.S.2d 845, 168 N.E.2d 666, “[a] party should not be permitted to experiment with an action at law for the purpose of ascertaining how much [she] can get, and then, if dissatisfied, repudiate the recovery and seek to claim the benefits of work [ers'] compensation”.   On the other hand, the courts have long recognized that no conclusive and binding election of remedies is made in the case where a claimant is “turned out of court because of a futile recourse to a remedy which the law denied him” (Matter of Tate v. Estate of Dickens, 276 App.Div. 94, 99, 93 N.Y.S.2d 504;  see, Matter of Amorando v. D'Antonio, 285 App.Div. 916, 137 N.Y.S.2d 552).

Consistent with the requirement that the Workers' Compensation Law be construed “with the greatest liberality” in favor of workers (see, Matter of Tate v. Estate of Dickens, supra, at 98, 93 N.Y.S.2d 504), the remedy of an action at law will be found to have been “unavailable” in substantially any case where the claimant is unsuccessful in obtaining an award of money damages against the employer.   Thus, while actions resulting in a recovery against the employer, either by award of damages (see, Matter of Dickinson v. Port Dick Coal & Supply Co., 162 A.D.2d 788, 558 N.Y.S.2d 215, lv. denied 76 N.Y.2d 713, 563 N.Y.S.2d 769, 565 N.E.2d 518) or by settlement (see, Matter of Martin v. C.A. Prods. Co., supra ), have been found to bar a subsequent compensation proceeding, final judgments on the merits dismissing the employee's civil action have been held to effect no such bar (see, Matter of Tate v. Estate of Dickens, supra [complaint dismissed on the merits based upon the claimant's failure to establish the employer's negligence];  see also, Matter of Bode v. O. & W. Rest., 9 A.D.2d 969, 193 N.Y.S.2d 845 [complaint dismissed following nonjury trial based upon findings that the claimant was an invitee and that his negligence contributed to the accident] ).   We can hardly imagine a final termination of a civil action less likely to constitute a binding renunciation of a claimant's right to pursue a compensation claim than that presented here, where the civil action was dismissed upon the essential ground that claimant's proper remedy was a compensation claim.

ORDERED that the decision is reversed, with costs against the Workers' Compensation Board, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this court's decision.


1.   The record on appeal contains none of the papers submitted on the summary judgment motion, including the underlying pleadings.

2.   Neither the employer, the Uninsured Employers Fund nor the Board has filed a responding brief.



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