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This entry was published on 2017-04-14
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SECTION 11
Alternative remedy
Workers' Compensation (WKC) CHAPTER 67, ARTICLE 2
§ 11. Alternative remedy. The liability of an employer prescribed by
the last preceding section shall be exclusive and in place of any other
liability whatsoever, to such employee, his or her personal
representatives, spouse, parents, dependents, distributees, or any
person otherwise entitled to recover damages, contribution or indemnity,
at common law or otherwise, on account of such injury or death or
liability arising therefrom, except that if an employer fails to secure
the payment of compensation for his or her injured employees and their
dependents as provided in section fifty of this chapter, an injured
employee, or his or her legal representative in case of death results
from the injury, may, at his or her option, elect to claim compensation
under this chapter, or to maintain an action in the courts for damages
on account of such injury; and in such an action it shall not be
necessary to plead or prove freedom from contributory negligence nor may
the defendant plead as a defense that the injury was caused by the
negligence of a fellow servant nor that the employee assumed the risk of
his or her employment, nor that the injury was due to the contributory
negligence of the employee. The liability under this chapter of The New
York Jockey Injury Compensation Fund, Inc. created under section two
hundred twenty-one of the racing, pari-mutuel wagering and breeding law
shall be limited to the provision of workers' compensation coverage to
jockeys, apprentice jockeys, exercise persons, and at the election of
the New York Jockey Injury Compensation Fund, Inc., with the approval of
the New York state gaming commission, employees of licensed trainers or
owners licensed under article two or four of the racing, pari-mutuel
wagering and breeding law and any statutory penalties resulting from the
failure to provide such coverage.

For purposes of this section the terms "indemnity" and "contribution"
shall not include a claim or cause of action for contribution or
indemnification based upon a provision in a written contract entered
into prior to the accident or occurrence by which the employer had
expressly agreed to contribution to or indemnification of the claimant
or person asserting the cause of action for the type of loss suffered.

An employer shall not be liable for contribution or indemnity to any
third person based upon liability for injuries sustained by an employee
acting within the scope of his or her employment for such employer
unless such third person proves through competent medical evidence that
such employee has sustained a "grave injury" which shall mean only one
or more of the following: death, permanent and total loss of use or
amputation of an arm, leg, hand or foot, loss of multiple fingers, loss
of multiple toes, paraplegia or quadriplegia, total and permanent
blindness, total and permanent deafness, loss of nose, loss of ear,
permanent and severe facial disfigurement, loss of an index finger or an
acquired injury to the brain caused by an external physical force
resulting in permanent total disability.

For purposes of this section "person" means any individual, firm,
company, partnership, corporation, joint venture, joint-stock
association, association, trust or legal entity.

The liability under this chapter of the New York black car operators'
injury compensation fund, inc. shall be limited to: (i) securing the
payment of workers' compensation in accordance with article six-F of the
executive law to black car operators, as defined in such article, whose
injury arose out of and in the course of providing services for a
central dispatch facility, as defined in such article, that is a
registered member of such fund, and (ii) any statutory penalty resulting
from the failure to secure such payment. The liability under this
chapter of a central dispatch facility, as defined in article six-F of
the executive law, that is a registered member of the New York black car
operators' injury compensation fund, inc. that shall be limited to
remaining a registered member in good standing of such fund and any
statutory penalty, including loss of immunity provided by this section,
resulting from the failure to become or remain a registered member in
good standing of such fund, except, however, that such central dispatch
facility shall be subject to the provisions of section one hundred
thirty-one of this chapter and shall be liable for any payments for
which it may become responsible pursuant to such section or pursuant to
section fourteen-a of this chapter.

The liability under this chapter of the New York independent livery
driver benefit fund, inc. shall be limited to: (i) securing the payment
of workers' compensation coverage to cover those matters required by
article six-G of the executive law for independent livery drivers, as
defined in such article, whose injury arose out of and in the course of
providing covered services for a livery base, as defined in such
article, that is a registered member of such fund, and (ii) any
statutory penalty resulting from the failure to secure such payment.