N.Y. Workers' Compensation Law § 11: Alternative remedy

§ 11. Alternative remedy. 1. 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 article.

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.

2. Determination by the board shall not be given collateral estoppel

effect in any other action or proceeding arising out of the same

occurrence, other than the determination of the existence of an employer

employee relationship.