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PLAINTIFF PROPERLY OPTED TO SUE EMPLOYER FOR WORKPLACE INJURY, EMPLOYER DID NOT CARRY WORKERS’ COMPENSATION INSURANCE.

The Second Department determined plaintiff’s personal injury action against his employer (Montalvo) should not have been dismissed. The employer did not have Workers’ Compensation insurance and plaintiff properly opted to sue:

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Generally, “Workers’ Compensation benefits are [t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment” … . “This precludes suits against an employer for injuries in the course of employment” … . Here, however, the plaintiff properly elected his remedy of pursuing this action against Montalvo under Workers’ Compensation Law §§ 11 and 50, since Montalvo did not carry Workers’ Compensation coverage at the time of the accident … , a fact conceded by Montalvo’s counsel in a statement that constituted a judicial admission … . Accordingly, the trial court should not have granted Montalvo’s trial motion pursuant to CPLR 3211(a)(7). Rosario v Montalvo & Son Auto Repair Ctr., Ltd., 2017 NY Slip Op 02837, 2nd Dept 4-12-17

WORKERS’S COMPENSATION LAW (PLAINTIFF PROPERLY OPTED TO SUE EMPLOYER FOR WORKPLACE INJURY, EMPLOYER DID NOT CARRY WORKERS’ COMPENSATION INSURANCE)/EMPLOYMENT LAW (PLAINTIFF PROPERLY OPTED TO SUE EMPLOYER FOR WORKPLACE INJURY, EMPLOYER DID NOT CARRY WORKERS’ COMPENSATION INSURANCE)

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