Cerussi & Spring, P.C., White Plains (Richard D. Bentzen
of counsel), for appellants.
& Bernstein, P.C., Mineola (Vincent J. Battista of
counsel), for respondent.
Acosta, P.J., Manzanet-Daniels, Kapnick, Oing, JJ.
Supreme Court, New York County (Lucindo Suarez, J.), entered
April 15, 2019, which, to the extent appealed from as limited
by the briefs, granted third-party defendant I & G Group,
Inc.'s motion for summary judgment dismissing the
third-party claims against it for common law contribution and
indemnification, based on a prior decision by the
worker's compensation board finding that it is
plaintiff's employer, unanimously reversed, on the law,
without costs, and the motion denied.
Court of Appeals has stated that "[w]here liability is
imposed upon an employer to provide work[er]'s
compensation and compensation is provided, that liability is
exclusive and in the stead of any other employer liability
whatsoever" (O'Rourke v Long, 41 N.Y.2d
219, 221 ; see Worker's Compensation Law
§ 11). Thus, "[i]f the right to sue the employer
has been stripped away by work[er]'s compensation
coverage, it is an arrogation of jurisdiction to consider a
tort complaint on its merits" (id. at 221).
Applying the holding in O'Rourke, courts have
granted summary judgment dismissing tort claims against
employers when the exclusive remedy of worker's
compensation benefits has already been awarded
(Decavallas v Pappantoniou, 300 A.D.2d 617');">300 A.D.2d 617 [2d Dept
2002]; Raphael v Sun Oil Co., 214 A.D.2d 720');">214 A.D.2d 720 [2d
Dept 1995]; Calhoun v Big Apple Wrecking Corp., 162
A.D.2d 574 [2d Dept 1990]). Notably, however, in each of
these cases the employer was a party to, and participated in,
the worker's compensation proceeding.
Court of Appeals has also recognized that a decision by the
worker's compensation board may not be binding on parties
who do not participate in its hearings. In Liss v Trans
Auto Sys. (68 N.Y.2d 15, 22 ), the Court held that
"where a defendant was not afforded an opportunity to
cross-examine witnesses or present evidence at the prior
[worker's compensation] hearing, the outcome of the
hearing cannot have preclusive effect on that party"
(internal citations omitted). By contrast, "any party to
the hearing who had the required notice and opportunity to be
heard will be precluded from relitigating issues necessarily
decided by the administrative Judge" (id. at 21
[internal citation omitted]). The Court explained that
"the Worker's Compensation Board has primary
jurisdiction, but not necessarily exclusive jurisdiction, in
factual contexts concerning compensability"
(id. at 20). Noting that the defendants were not
parties in interest in the worker's compensation
proceedings, since they had no possible enforceable interest
in a worker's compensation award, the Court determined
that it was not an abuse of discretion for the worker's
compensation judge to have precluded their participation at
the hearing. However, the Court warned that "[u]nless
the Legislature expands the definition of parties in
interest, the unfortunate result will be that a duplicative
proceeding must be held and the issue of compensability
adjudicated anew because defendants never had a full and fair
opportunity' to litigate the question" (id.
at 22; see also Reynoso v Kensington Mgt. Servs.,
181 A.D.2d 415');">181 A.D.2d 415 [1st Dept 1992] ["the Board's
decision is determinative of the issue, thus precluding any
party to the hearing, who had the required notice and
opportunity to be heard, from relitigating such
because it is undisputed that appellants were not given
notice of the worker's compensation hearing, and were not
afforded the opportunity to present evidence or cross-examine
witnesses, their third-party claims, in which they challenge
the identity of plaintiff's employer, should not have