Groth v. Masnakoff

Hill, J.

Motion by the third-party defendant to dismiss the third-party complaint on the ground that it fails to state a cause of action.

The plaintiffs bring their action against the defendant (third-party plaintiff) for personal injuries on the theory of the negligence of the third-party plaintiff (defendant) in the operation of an automobile owned and driven by the third-party plaintiff (defendant). At the time of the accident both were employed by the same employer. Plaintiff was operating an automobile owned by him.

If the third-party plaintiff (defendant) proves the allegation of his affirmative defense set forth in the answer (Workmen’s C/ompensation Law, § 29, subd. 6) there will be a complete bar to any recovery as against him (Olmsted v. Teal, 275 App. Div. 887). In the event recovery is had against the third-party plaintiff (defendant) on the theory of his active negligence in the operation of the automobile, there can be no right over against the employer.

Accordingly, the motion to dismiss is granted. Submit order.