Camporese v. Port Authority , 415 N.Y.S.2d 28 ( 1979 )

Resettled judgment, Supreme Court, New York County, entered September 6, 1978, modified, on the law and on the facts, (a) to dismiss the third-party complaint against Bentley Painting Co., Inc., and (b) to remand for a new trial on the issue of damages unless plaintiff, within 20 days after service upon him of a copy of the order herein, with notice of entry, serves and files in the office of the trial court a written stipulation consenting to reduce the verdict in his favor to $325,000, and to the entry of an amended judgment in accordance therewith. Except, as so modified, the resettled judgment appealed from is affirmed, without costs or disbursements. If plaintiff so stipulates, the resettled judgment, as so amended and reduced, and, as modified by (a) above, is affirmed, without costs or disbursements. Appeals from original judgment entered May 4, 1978, dismissed, without costs or disbursements, the original judgment having been superseded by the resettled judgment. Defendants’ liability was established. Contrary to defendants’ assertions, the charge on contributory negligence was appropriate. A proper foundation was laid and limited instructions given with respect to the introduction of photographs of a ladder. The other claims of trial error are without merit. The damages awarded, however, are excessive to the extent indicated. In addition, the motion at the close of the evidence by Bentley, plaintiff’s employer, to dismiss the third-party complaint should have been granted. The accident occurred in New Jersey and by agreement of the parties, the law of that State was applied to the substantive issues. Unlike New York, the decisional law of New Jersey adheres to the majority rule in the United States which prohibits the bringing of a third-party action against the employer of an injured plaintiff for common-law indemnity or contribution, where the injury is covered by workers’ compensation insurance. (Farren v New Jersey Turnpike Auth., 31 NJ Super 356; Schweizer v EIox Div. of Colt Inds., 70 NJ 280.) Since the sole and exclusive remedy of an injured employee against his employer is under workers’ compensation, the employer is not jointly liable to the employee in tort. Therefore, he cannot be regarded as a joint tort-feasor with any other tort-feasor seeking common-law indemnity or contribution. (2A, Larson, Workmen’s Compensation Law, § 76.21, pp 14-295 to 14-298.) No relationship giving rise to liability other than that of joint tort liability was shown to exist between the employer, and the owner and general contractor. Nor was it shown that a separate duty, such as would arise from an express contract of indemnity, was owed to defendants by the employer. This prohibition is substantive and not a mere remedial matter as the third-party plaintiffs contend. Concur—Sullivan, Lane, Markewich and Lupiano, JJ.