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Berenberg v. Park Memorial Chapel

Supreme Court of New York, Appellate Division

June 16, 1955

Berenberg
v.
Park Memorial Chapel

Page 168

[142 N.Y.S.2d 346] Joseph D. Edwards, New York City (Ralph S. Stowell, New York City, of counsel), for appellant.

Michael Jacowitz, Brooklyn, for claimant-respondent.

Jacob K. Javits, Atty. Gen. (Roy Wiedersum and Gilbert M. Landy, Asst. Attys. Gen., of counsel), for respondent Workmen's Compensation Board.

Before FOSTER, P. J., and BERGAN, HALPERN, IMRIE and ZELLER, JJ.

ZELLER, Justice.

The issue presented upon this appeal is whether the Workmen's Compensation Board may require an insurance carrier to pay compensation to a claimant for disability due to an assault by a coemployee, arising out of and in the course of employment, after the claimant has effected a settlement of damages with the coemployee without the approval of the carrier.

The employer operated an undertaking establishment where both the claimant and the coemployee worked. While in the course of his employment on the employer's premises, an argument arose between the claimant and the coemployee concerning the necessity of securing an additional automobile, for a funeral. The argument culminated in the [142 N.Y.S.2d 347] coemployee striking the claimant's left eye and causing injury thereto. The claimant signed a criminal information charging his coemployee with assault but, following payment of the sum of $750 from his coemployee, he withdrew the criminal charge and executed an instrument which, by its terms, released both his coemployee and his employer from

Page 169

all causes of actions and claims flowing from the assault, but which reserved his rights against the employer under the Workmen's Compensation Law. Approval of the settlement by the employer's insurance carrier was neither sought nor given.

Thereafter, a proceeding was commenced by the claimant for disability compensation which was resisted by the insurance carrier upon the ground that the settlement of the assault cause of action, without its approval, released the claimant's right to deficiency compensation. The Board rejected the defense holding that the settlement did not constitute a compromise of a third-party action within the meaning of section 29 of the Workmen's Compensation Law.

Section 29 of the Workmen's Compensation Law provides that the right to compensation is the exclusive remedy of an employee when he is injured 'by the negligence or wrong of another in the same employ', subd. 6, but, if an employee be injured 'by the negligence or wrong of another not in the same employ', he may pursue his common-law remedies against such other under certain restrictions not here pertinent, subd. 1. The section further provides that a compromise by the employee of such a cause of action for an amount less than the compensation scheduled by the Workmen's Compensation Law may be made only with the written approval of the insurance carrier if the carrier is to be held liable for any deficiency of compensation, subd. 5.

It may seem at first view, because subdivision 6 of section 29 provides that the right of a claimant to compensation is his exclusive remedy when he is injured 'by the negligence or wrong of another in the same employ', that the claimant had no cause of action against his coemployee and that any settlement made could not be considered a compromise of a third-party cause of action. However, it has been held that an intentional tort or any intended wrong is not the 'wrong' which the Legislature intended would bar a common-law cause of action against a coemployee. DeCoigne v. Ludlum Steel Co., 251 A.D. 662, 297 N.Y.S. 636. In Mazarredo v. Levine, 274 A.D. 122, 80 N.Y.S.2d 237, it was held that an action for assault could be maintained against a coemployee. The Court said in 274 App.Div. at page 126, 80 N.Y.S.2d at page 241, 'Assuming, however, that the plaintiff was not the aggressor and that the assault arose out of a quarrel between coemployees relating to matters connected with the employment so as to make the plaintiff's injuries compensable as an industrial accident in so far as the employer is concerned, we find nothing in the statute that requires [142 N.Y.S.2d 348] us to construe it as affording to the perpetrator of the assault a defense based on the exclusive

Page 170

remedy of compensation provided for one injured by the negligence or wrong of another in the same employ. Workmen's Comp. Law, ยง 29, subd. 6.' Hence, we view the cause of action for assault asserted by this claimant against his ...


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