Opinion
December 27, 1983
In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence, J.), dated November 29, 1982, which granted that branch of defendant's motion which sought summary judgment and dismissed the complaint. Order affirmed, with costs. Special Term properly determined that, having applied for and accepted workers' compensation benefits, plaintiff is foreclosed from maintaining the instant action at law against her employer (see Workers' Compensation Law, §§ 11, 29; Cunningham v. State of New York, 60 N.Y.2d 248; Werner v. State of New York, 53 N.Y.2d 346). Further, there was no prejudice attributable to the failure to plead the defense of workers' compensation in the answer, and, as it appeared from the bill of particulars that the plaintiff was an employee of the defendant, the obligation of alleging noncoverage fell upon the plaintiff ( Murray v. City of New York, 43 N.Y.2d 400, 407). While the exclusivity of workers' compensation as a remedy may be waived, such waiver is "accomplished only by a defendant ignoring the issue to the point of final disposition itself" ( Murray v. City of New York, supra, p 407). Lazer, J.P., Thompson, Niehoff and Boyers, JJ., concur.