Buchanan Ingersoll, P. C., New York City (Matthew Hearle of counsel), for defendant.
Harry I. Katz, Fresh Meadows, for plaintiffs.
Lorraine S. Miller, J.
Defendant Eastman Kodak Company (Eastman) moves pursuant to CPLR 3211 (a) (3), (5) and/or (7) seeking to dismiss the complaint.
Plaintiff Joseph Sclafani (Sclafani) sustained personal injuries on October 18, 2000, while working as an electrician for E.J . Electric, at a construction site located at 685 Third Avenue, New York, New York (the premises). He was injured when an employee of Contractor's Sheet Metal, the duct work subcontractor on the job site, was operating a material hoist that was lifting an air duct to be placed in the ceiling. The employee was improperly moving the hoist while it was fully extended, which caused the hoist to become unbalanced and fall over. As it fell, it hit an overhead lighting cable which was strung across the ceiling, causing the cable to fall. Sclafani, who was working as an electrician on the premises at the time of the incident, was walking below carrying a ladder on his shoulder. The falling cable hit the ladder and caused the plaintiff's shoulder to twist backward, resulting in a torn rotator cuff. Sclafani required surgery and allegedly has been totally disabled from employment since the date of the incident.
The plaintiffs commenced a related personal injury lawsuit against numerous parties, which is currently pending in the Supreme Court of the State of New York, index No. 110253/99. The instant action was commenced on January 4, 2001, against Eastman, the alleged tenant of the premises where Sclafani was injured.
Eastman moves to dismiss the complaint against it on the grounds that under Workers' Compensation Law § 29 (1) and (2) plaintiffs lack the necessary standing to maintain an action against Eastman, because by operation of law their rights have been assigned. Workers' Compensation Law § 29 (1) provides in relevant part:
" If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee ... need not elect whether to take compensation and medical benefits under this chapter or to pursue his remedy against such other but may take such compensation and medical benefits and at any time either prior thereto or within six months after the awarding of compensation or within nine months after the enactment of a law or laws creating, establishing or affording a new or additional remedy or remedies, pursue hisremedy
against such other subject to the provisions of ...