Di Pilla v. City of New York , 400 N.Y.S.2d 154 ( 1977 )

In an action based upon workmen’s compensation awards, the plaintiff appeals from an order of the Supreme Court, Kings County, entered June 3, 1977, which (1) denied his motion for summary judgment, (2) granted the defendants’ cross motion for summary judgment and (3) dismissed the complaint. Order modified, on the law, by (1) deleting the first and third decretal paragraphs thereof and substituting therefor a provision granting plaintiff partial summary judgment in the amount of $6,382 and (2) adding to the second decretal paragraph thereof, after the word "granted”, the following: "as to the portion of the complaint which seeks to recover the amount of the penalties, and is otherwise denied.” As so modified, order affirmed, with $50 costs and disbursements, payable to the plaintiff. The Workmen’s Compensation Board awarded the plaintiff benefits in the amount of $6,382. He was also awarded $1,276.40 in penalties as a result of the defendants’ failure to pay the benefits previously awarded. Although an appeal by the defendants is pending before the Workmen’s Compensation Board, that appeal is limited to the penalties which were levied against them. No appeal is pending as to the benefits already awarded to the plaintiff. We see no reason why the plaintiff should not be permitted, by an action at law, to enforce his rights to these benefits, the payment of which has been delayed for more than a year. Nothing in the Workmen’s Compensation Law bars such an action. The action is premature insofar as it seeks recovery of the amount of the penalties. Shapiro, J. P., Hawkins, Suozzi and Mollen, JJ., concur.