Cynthia Hirsch v. Anthony Mastroianni

In a wrongful death action, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated September 23, 1980, which (1) granted defendants motion for summary judgment and dismissed plaintiffs complaint on the ground that plaintiffs action is barred by subdivision 6 of section 29 of the Workers Compensation Law, and (2) denied plaintiffs cross motion pursuant to CPLR 3211 (subd [b]) to dismiss defendants second affirmative defense which alleged that plaintiffs cause of action was barred by the aforesaid section of the Workers Compensation Law. Order reversed, with $50 costs and disbursements, motion denied and cross motion granted. Plaintiffs intestate (Hirsch) and defendants intestate (Di Stefano) were co-employees of the East Islip School District. On June 26, 1978, Di Stefano entered Hirschs office and shot Hirsch to death with a shotgun. Di Stefano then went into an adjoining room and committed suicide with another shotgun. Hirschs widow, plaintiff herein, applied for and was ultimately awarded workers compensation benefits. Plaintiff then commenced this action for wrongful death. Defendant alleged as an affirmative defense that plaintiff is ineligible for such relief because workers compensation benefits provide the exclusive remedy to the dependents of an employee killed by the negligence or wrong of another in the same employ (see Workers Compensation Law, § 29, subd 6). Special Term dismissed plaintiffs complaint on the basis of this affirmative defense. In light of the recent Court of Appeals decision in Maines v Cronomer Val. Fire Dept. (50 N.Y.2d 535), we hold that it was error to grant summary judgment to the defendant and to dismiss the [80 A.D.2d 633 Page 634]