Fernando P. Honrado, Plaintiff,
H.R . Electric Co., Inc., et al., Defendants.
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., Mount Vernon (Joseph J. Carcagno of counsel), for plaintiff.
John R. LaCava, J.
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 Co., 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 and 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] ). 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 Law 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 ...