Opinion
December 29, 1975
In a negligence action to recover damages for personal injuries, etc., defendant Williams appeals from so much of an order of the Supreme Court, Orange County, dated April 7, 1975, as (1) denied the branch of his motion which was for summary judgment dismissing the cross claim of codefendant Thomas against appellant and (2) ordered that that cross claim is deemed a third-party claim. Order affirmed insofar as appealed from, with $50 costs and disbursements to respondents appearing separately and filing separate briefs. Appellant urged that his exemption from suit under subdivision 6 of section 29 Work. Comp. of the Workmen's Compensation Law also protected him from the cross claim of codefendant Thomas for an apportionment of damages. This position is untenable (Dole v Dow Chem. Co., 30 N.Y.2d 143). Rogers v Dorchester Assoc. ( 32 N.Y.2d 553) did not alter Dole and require that the third-party defendant be subject to suit by the initial plaintiff. A third-party defendant employer or employee owes a duty of care to the other employees. The Workmen's Compensation Law affects only an injured employee's remedies, not the duties of the employer or fellow employees. This case is governed by Dole v Dow Chem. Co. (supra), Kelly v Long Is. Light. Co. ( 31 N.Y.2d 25), and Tallarico v Long Is. Light. Co. ( 45 A.D.2d 845, affd 38 N.Y.2d 733). Neither State Farm Mut. Auto Ins. Co. v Westlake ( 35 N.Y.2d 587), involving an interpretation of subdivision 3 of section 167 Ins. of the Insurance Law, nor Barry v Niagara Frontier Tr. System ( 35 N.Y.2d 629), based primarily on former section 341-a of the Village Law, altered Dole. Martuscello, Acting P.J., Cohalan, Christ, Munder and Shapiro, JJ., concur.