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Supreme Court, Westchester County, New York.

Fernando P. HONRADO, Plaintiff, v. H.R. ELECTRIC CO., INC., et al., Defendants.

Decided: June 22, 2001

Patrick Colligan, Harrison (Kevin W. Connolly of counsel), for H.R. Electric Co., Inc., defendant. Susan B. Owens, Valhalla (Joseph M. Zecca of counsel), for Hector Robinson, defendant. DeAngelis & Hafiz, P. C., Mt. Vernon (Joseph J. Carcagno of counsel), for plaintiff.

The dispositive issue herein is whether this negligence and labor law action is barred by the three year statute of limitations (CPLR § 214) or whether it survives by virtue of the tolling provisions and the six-month grace period found in CPLR § 205 as would be measured from the termination of workers compensation proceedings.   Resolution of this issue entails consideration of the novel question of whether an earlier commenced action, dismissed for failure to prosecute, is void ab initio because it was subject to the available affirmative defense of workers' compensation which neither defendant had raised and which, if raised, would have tolled the period of limitations until termination of the workers' compensation claim (see, CPLR § 205).

For the reasons that follow, the Court answers the question in the negative and finds that this action is time-barred.

Plaintiff Fernando P. Honrado was injured on August 1, 1995 when, while working at a house owned by defendant Hector Robinson, he allegedly fell from an elevated ramp.   By application dated August 10, 1995, plaintiff filed a claim with the Workers' Compensation Board wherein he alleged that he had been hired by defendant Hector Robinson as an employee of defendant H.R. Electric, Inc.

In July 1997, while his workers' compensation claim was still pending, plaintiff commenced a Labor Law and negligence action against the defendants in connection with the August 1, 1995 incident (Westchester County Index Number 10848-97;  “the 1997 action”).   Therein, plaintiff sued defendants as his employer and as the owners and operators of the property where he had allegedly been injured.

By Decision & Order of August 10, 1998, the Court (Fredman, J.) granted an unopposed application of plaintiff's then counsel for leave to withdraw from any further representation of plaintiff (see, CPLR 321[b][2] ).   Therein, the Court directed plaintiff, either pro se or through newly retained counsel, to advise the Court about the status of the case by September 30, 1998.   Upon plaintiff's failure to appear either pro se or through counsel, the Court (Fredman, J.) dismissed the action on July 23, 1999.

The Workers' Compensation Board rendered a decision which was filed on August 9, 2000.   Therein, the Administrative Judge found that an employer-employee relationship had not been formed in connection with the work that plaintiff had performed for defendants at the premises.   The determination was upheld upon administrative appeal in a decision filed on November 27, 2000.

By summons and verified complaint filed on January 4, 2001, plaintiff initiated this action wherein he seeks relief on the basis of defendants' alleged negligence and for asserted violations of the Labor Law. No employer-employee relationship is advanced.

Characterizing the 1997 action as void ab initio, plaintiff seeks to rely upon CPLR § 205 to sustain this action which otherwise carries a three-year period of limitations as would be calculated from the August 1, 1995 date of occurrence (see, CPLR § 214).   Upon treating the 1997 action as if it never existed, plaintiff argues that this action is timely since it was commenced within six-months of the November 27, 2000 filing of the Workers' Compensation administrative appellate determination since the underlying application for workers' compensation benefits was filed on August 10, 1995 which is well within three years of the August 1, 1995 incident (see, CPLR § 205[a], [c] 1 ;  § 214).

This Court cannot adopt such an application of the law and interpretation of the statute.

 “Sections 240 and 241 of the Labor Law impose a nondelegable duty upon all owners and contractors to provide certain safe appurtenances and a safe place to work for all of the employees at a construction site” (Lindner v. Kew Realty Co., 113 A.D.2d 36, 494 N.Y.S.2d 870 [2d Dept., 1985] ).   An employee's remedy for injuries sustained because of the negligence of one's employer is workers' compensation benefits (Workers' Compensation Law § 11).  “In general, a plaintiff may not bring an action against his employer in its capacity as a property owner ․;   his exclusive remedy is a claim under his employer's workers' compensation policy of insurance (Workers' Compensation Law §§ 11, 29[6] )” (Jackson v. Tivoli Towers Housing Co., Inc., 176 A.D.2d 918, 575 N.Y.S.2d 370 [2d Dept., 1991] app denied 79 N.Y.2d 754, 581 N.Y.S.2d 665, 590 N.E.2d 250 [1992] rearg. denied 80 N.Y.2d 826, 587 N.Y.S.2d 910, 600 N.E.2d 637 [1992] ).

As such, workers' compensation is available to an employer as an affirmative defense to an action brought by an asserted employee for work related injuries.   Contrary to plaintiff's assertion, however, an employer is under no obligation to raise such a defense.   In fact, a workers' compensation defense may be waived, albeit “only by a defendant ignoring the issue to the point of final disposition itself” (Goodarzi v. City of New York, 217 A.D.2d 683, 684, 630 N.Y.S.2d 534 [2d Dept., 1995], lv. denied 87 N.Y.2d 803, 639 N.Y.S.2d 310, 662 N.E.2d 791, quoting Murray v. City of New York, 43 N.Y.2d 400, 407, 401 N.Y.S.2d 773, 372 N.E.2d 560;  and citing, Caceras v. Zorbas, 148 A.D.2d 339, 538 N.Y.S.2d 552, affd. 74 N.Y.2d 884, 547 N.Y.S.2d 834, 547 N.E.2d 89;  Rainey v. Jefferson Vil. Condo No. 11 Assocs., 203 A.D.2d 544, 611 N.Y.S.2d 207 lv. denied 84 N.Y.2d 804, 618 N.Y.S.2d 6, 642 N.E.2d 325).

While an employee would ordinarily not opt to bring an action against an employer for work related injuries since the action is subject to dismissal upon the affirmative defense of workers' compensation, such actions are not void ab initio where, as is the case with the 1997 action, such a defense is not raised by the employer.   Therefore, the 1997 action must be taken into account in connection with this motion to dismiss.

 The July 23, 1999 dismissal of the 1997 action was, in essence, a dismissal for failure to prosecute.   It was not a dismissal “on the merits.”   Since the 1999 dismissal related to an August 1995 incident, plaintiff was foreclosed from initiating a timely new action since the three-year period of limitations had already run (see, Shepard v. St. Agnes Hospital, 86 A.D.2d 628, 446 N.Y.S.2d 350 [2d Dept., 1982] ) and the CPLR § 205 six-month extension was not, by its terms, available to plaintiff.   Dismissals based on neglect to prosecute are expressly excluded from the section 205 statutory toll (see, CPLR § 205[a] ).

While, perhaps now enlightened about the vulnerability of an action by an asserted employee against an employer for work related injuries, one could understand why an employee-plaintiff would be reluctant to initiate a similar new action where an earlier action had been dismissed for failure to prosecute, nonetheless, such an earlier action is not void ab initio and must be taken into account upon application of CPLR § 205.   This is so even though, had plaintiff not commenced the 1995 action, CPLR § 205(a) and (c) would have rendered this action timely when measured from the termination of worker's compensation proceedings.

Based upon the foregoing, the motion to dismiss this action as barred by the statute of limitation is granted.   To any further extent, the motion is denied or is otherwise deemed moot.


1.   Section 205 of the CPLR provides in relevant part:(a) New action by plaintiff.   If an action is timely commenced and is terminated in any other manner than by ․, a dismissal of the complaint for neglect to prosecute the action ․ the plaintiff ․ may commence a new action upon the same transaction or occurrence ․ within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.  .    .    .    .    .(c) Application. This section also applies to a proceeding brought under the workers' compensation law


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