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RICHARD MIROE, et al., respondents, v. TED MIROE, defendant third-party plaintiff-appellant; NEWSDAY, INC., third-party defendant-appellant.

DECISION ORDER

ORDERED that the order is reversed, on the law, with one bill of costs, the motion and cross motion are granted, and the complaint and the third-party complaint are dismissed.

One who has received workers' compensation benefits is barred from commencing an action against a fellow employee who was acting within the scope of his or her employment at the time of the injury (see, Workers' Compensation Law § 29[6]; Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 543 ). As the defendant was acting within the scope of his employment at the time of the accident (see, Matter of Husted v. Seneca Steel Serv., 41 N.Y.2d 140 ), the plaintiffs' action is barred, and the third-party action for contribution and indemnification becomes academic. In any event, the third-party action should have been dismissed as the injured plaintiff did not suffer a "grave injury" (Workers' Compensation Law § 11).

SANTUCCI, J.P., KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.

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MIROE v. MIROE
(Mar 23, 2000)