Suing Over a Work Injury in New York

Generally no: an employer's workers' compensation liability is exclusive and in place of any other liability to the employee and family, and compensation is also the exclusive remedy for injuries caused by a co-worker's negligence. Exception: if the employer failed to secure compensation, the employee may choose either to claim workers' compensation or to sue the employer in court, where the employer cannot rely on the worker's contributory negligence, a fellow servant's negligence or assumption of risk. A third party who is sued (for example under the scaffold law) cannot obtain contribution or indemnity from the employer unless the worker suffered a statutory 'grave injury' (such as death, amputation or permanent total loss of use of a limb, paralysis, total blindness or deafness, or certain permanent brain injuries) or the employer agreed in writing.

Yes. An injured worker does not have to choose between workers' compensation and a lawsuit against a negligent third party; the worker may take benefits and sue. The carrier or fund that paid benefits has a lien on the recovery, after reasonable litigation expenses including attorney fees. Notice that the lawsuit has been started must be given to the carrier within 30 days, and a settlement for less than the compensation owed generally needs the carrier's written consent or a court compromise order; if the worker does not sue within the time allowed, the claim can be assigned to the carrier.

If an employer has not secured workers' compensation, the worker may either claim benefits or sue the employer in court without the employer's usual defenses. Awards against an uninsured employer are paid promptly from the Uninsured Employers' Fund, and the employer remains liable, with a corporation's president, secretary and treasurer personally, jointly and severally liable. The Board can assess the employer up to $1,000 for each 10 days of non-compliance (or up to twice the cost of compensation for its payroll during that period), and the assessments are liens on the employer's assets.