Luz Rueda, appellant, v. LLC

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

Luz Rueda, appellant, v. Elmhurst Woodside, LLC, et al., defendants, Make Up Shop, respondent.

2013–00846 (Index No. 25905/08)

Decided: April 30, 2014

WILLIAM F. MASTRO, J.P. RUTH C. BALKIN SANDRA L. SGROI HECTOR D. LASALLE, JJ. Souren A. Israelyan, New York, N.Y., for appellant. French & Casey, LLP, New York, N.Y. (Karen M. Mahon of counsel), for respondent.

Argued—March 7, 2014

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), entered November 8, 2012, which granted the motion of the defendant Make Up Shop for summary judgment dismissing the complaint and all cross claims for indemnification insofar as asserted against it.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Make Up Shop which was for summary judgment dismissing all cross claims for indemnification insofar as asserted against it is dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Make Up Shop, payable by the plaintiff.

“[W]here an employer fails to secure workers' compensation coverage, an injured employee can simultaneously pursue both workers' compensation benefits and a personal injury action” (Matter of Ocasio v. Kim, 307 A.D.2d 662, 663;  see Workers' Compensation Law § 11).  “Such employee will be deemed to have elected one remedy over the other if an award of benefits is accepted or the civil action is concluded by settlement or judgment in the employee's favor” (Matter of Ocasio v. Kim, 307 A.D.2d at 663;  see Matter of Martin v. C.A. Prods.   Co., 8 N.Y.2d 226, 230–231;  Matter of Dickenson v Port Dick Coal & Supply Co., 162 A.D.2d 788, 788–789).

Here, the plaintiff accepted Workers' Compensation benefits and conceded that, as of January 26, 2012, she had received Workers' Compensation benefits in the sum of $100,096.16.   As the Supreme Court correctly concluded, this operated as an election of remedies, warranting dismissal of the complaint insofar as asserted against her employer, the uninsured defendant Make Up Shop. “Having accepted Workers' Compensation benefits, the plaintiff [is] barred by the finality and exclusivity provisions of the Workers' Compensation Law from bringing a separate common-law action” against her uninsured employer (Talcove v. Buckeye Pipe Line Co., 247 A.D.2d 464, 465;  see Jackman v. Fisher, 91 A.D.2d 602).

MASTRO, J.P., BALKIN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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