Diakakis v. Bedrick , 663 N.Y.S.2d 850 ( 1997 )

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered October 18, 1996, which granted defendant-respondent’s motion to vacate a prior order, entered on default, dismissing its affirmative defense of the exclusivity of the Workers’ Compensation Law, and upon vacatur, granted defendant-respondent summary judgment dismissing the complaint based on that defense, unanimously affirmed, without costs.

The IAS Court properly granted defendant’s motion to vacate its default in opposing plaintiffs motion to strike the affirmative defense of the Workers’ Compensation Law where the calendar service’s failure to notify counsel that it did not obtain an adjournment constituted excusable law office failure, and in light of the merits of the affirmative defense and the lack of prejudice to plaintiff. As plaintiff applied for, was awarded, and accepted workers’ compensation benefits from defendant’s insurance carrier, and failed to submit documentary proof that he was not employed by defendant, he is barred by the exclusive remedy of the Workers’ Compensation Law, and the court properly granted summary judgment dismissing the complaint (see, Werner v State of New York, 53 NY2d 346). Concur—Sullivan, J. P., Rosenberger, Williams and Andrias, JJ.