Compensation Law defense in New York

1999Federal practice, similar to State practice, requires that leave to amend a pleading “be freely given when justice so requires”, i.e., in the absence of undue delay, bad faith or undue prejudice (Fed Rules of Civ Pro, rule 15 [a]; Thomas v New York City, 814 F Supp 1139, 1145 ; Roloff v Arabian Am.

1999Federal practice, similar to State practice, requires that leave to amend a pleading “be freely given when justice so requires”, i.e., in the absence of undue delay, bad faith or undue prejudice (Fed Rules of Civ Pro, rule 15 [a]; Thomas v New York City, 814 F Supp 1139, 1145 ; Roloff v Arabian Am.

2024To the extent Matter of Parks v Weaver ( 14 NY2d 546 [1964]) provides to the contrary, it should not be followed. -4- an employee assaulted by a man “he had never previously seen,” because under the WCL § 21 (1) presumption, “[w]hen an injury is sustained in the course of employment it will be presumed, as a matter of law, that it did arise out of the employment” (Slade v Perkins, 42 AD2d 667 , 668 [1973], affd 33 NY2d 988 [1974]).

2024To the extent Matter of Parks v Weaver ( 14 NY2d 546 [1964]) provides to the contrary, it should not be followed. -4- an employee assaulted by a man “he had never previously seen,” because under the WCL § 21 (1) presumption, “[w]hen an injury is sustained in the course of employment it will be presumed, as a matter of law, that it did arise out of the employment” (Slade v Perkins, 42 AD2d 667 , 668 [1973], affd 33 NY2d 988 [1974]).

2024To the extent Matter of Parks v Weaver ( 14 NY2d 546 [1964]) provides to the contrary, it should not be followed. -4- an employee assaulted by a man “he had never previously seen,” because under the WCL § 21 (1) presumption, “[w]hen an injury is sustained in the course of employment it will be presumed, as a matter of law, that it did arise out of the employment” (Slade v Perkins, 42 AD2d 667 , 668 [1973], affd 33 NY2d 988 [1974]).

2009The Workers’ Compensation Law defense, however, turns on the actual exercise by the defendant of authority to control plaintiff employee’s work (see Fox, 266 AD2d at 99 ).

2004Bell was not plaintiff’s employer and plaintiff does not seek to hold Bell vicariously accountable for the conduct of plaintiffs coworker, but rather alleges that his injuries resulted from Bell’s and Jenkins’s affirmative negligence (see Chiriboga v Ebrahimoff, 281 AD2d 353 [2001]; see also Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., 288 AD2d 158 [2001]; cf. Rauch v Jones, 4 NY2d 592 [1958]).

2004Corp., 301 AD2d 491 [2003]; State of New York v Kama, 267 AD2d 225 [1999]).

2004Bell was not plaintiff’s employer and plaintiff does not seek to hold Bell vicariously accountable for the conduct of plaintiffs coworker, but rather alleges that his injuries resulted from Bell’s and Jenkins’s affirmative negligence (see Chiriboga v Ebrahimoff, 281 AD2d 353 [2001]; see also Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., 288 AD2d 158 [2001]; cf. Rauch v Jones, 4 NY2d 592 [1958]).

2004Corp., 301 AD2d 491 [2003]; State of New York v Kama, 267 AD2d 225 [1999]).

2001Assocs., 223 AD2d 450, 451 ).

1992Although the exclusivity provisions of the Workers’ Compensation Law bar an injured employee from maintaining a negligence action against a fellow employee (see, Workers’ Compensation Law §29 [6]; Ozarowski v Yaloz Realty Corp., 181 AD2d 763 ; Calhoun v Big Apple Wrecking Corp., 162 AD2d 574 ), the record reveals that questions of fact exist concerning the relationship between Handler and Protection Systems which cannot be resolved on the basis of the conflicting affidavits submitted by the parties (see, Rotuba Extruders v Ceppos, 46 NY2d 223 ; Puedo v Julian, 173 AD2d 926 ).

1992Although the exclusivity provisions of the Workers’ Compensation Law bar an injured employee from maintaining a negligence action against a fellow employee (see, Workers’ Compensation Law §29 [6]; Ozarowski v Yaloz Realty Corp., 181 AD2d 763 ; Calhoun v Big Apple Wrecking Corp., 162 AD2d 574 ), the record reveals that questions of fact exist concerning the relationship between Handler and Protection Systems which cannot be resolved on the basis of the conflicting affidavits submitted by the parties (see, Rotuba Extruders v Ceppos, 46 NY2d 223 ; Puedo v Julian, 173 AD2d 926 ).

1992Although the exclusivity provisions of the Workers’ Compensation Law bar an injured employee from maintaining a negligence action against a fellow employee (see, Workers’ Compensation Law §29 [6]; Ozarowski v Yaloz Realty Corp., 181 AD2d 763 ; Calhoun v Big Apple Wrecking Corp., 162 AD2d 574 ), the record reveals that questions of fact exist concerning the relationship between Handler and Protection Systems which cannot be resolved on the basis of the conflicting affidavits submitted by the parties (see, Rotuba Extruders v Ceppos, 46 NY2d 223 ; Puedo v Julian, 173 AD2d 926 ).

1992Although the exclusivity provisions of the Workers’ Compensation Law bar an injured employee from maintaining a negligence action against a fellow employee (see, Workers’ Compensation Law §29 [6]; Ozarowski v Yaloz Realty Corp., 181 AD2d 763 ; Calhoun v Big Apple Wrecking Corp., 162 AD2d 574 ), the record reveals that questions of fact exist concerning the relationship between Handler and Protection Systems which cannot be resolved on the basis of the conflicting affidavits submitted by the parties (see, Rotuba Extruders v Ceppos, 46 NY2d 223 ; Puedo v Julian, 173 AD2d 926 ).

1978An employee may maintain a malpractice action against a doctor or a compensation insurance carrier which employs a doctor for aggravation of injuries sustained in an industrial accident (Matter of Parchefsky v Kroll Bros., 267 NY 410 ; 65 NY Jur, Workmen’s Compensation, § 111, p 532, supra).

1962(See Williams v. Hartshorn, 296 N. Y. 49 ; Cunningham v. Rafalsky & Co., 281 App. Div. 609 , affd. 306 N. Y. 712 ; Roberts v. Gagnon., 1 A D 2d 297.) The defendant, however, in support of his defense, is not entitled to rely upon the findings of the Workmen’s Compensation Board as establishing plaintiff’s employment and injury causally related thereto.

1962(See Williams v. Hartshorn, 296 N. Y. 49 ; Cunningham v. Rafalsky & Co., 281 App. Div. 609 , affd. 306 N. Y. 712 ; Roberts v. Gagnon., 1 A D 2d 297.) The defendant, however, in support of his defense, is not entitled to rely upon the findings of the Workmen’s Compensation Board as establishing plaintiff’s employment and injury causally related thereto.