Pfeiffer v. McCall

96 Memorandum by the Court. Plaintiff Beverly Pfeiffer was a passenger in an automobile driven by defendant Dawn McCall and owned by defendant Alan McCall. Both plaintiff . passenger and defendant driver were nurses employed by the County of Wyoming and at the time of the accident were en route to Buffalo to pay tuition fees for a nursing course which they were to take at the University of Buffalo. Defendants McCall and defendant County of Wyoming interposed answers containing affirmative defenses alleging that at the time of the accident plaintiff passenger and defendant driver were in the course of their employment by defendant County of Wyoming. Special Term granted plaintiffs’ motion to strike out these affirmative defenses as sham and in its memorandum distinguished the case at bar from Baker v. Matthews (8 A D 2d 585) on the ground that in the Baker case there had not been a full inquiry in compensation court, whereas in the instant case a regular scheduled hearing had been held. We agree with the distinction made by Special Term but only as it relates to the defendant County of Wyoming. A C-2 form was filed by the county as employer and a notice of controversy, a C-7 form was filed by the carrier, Self Insurance Fund of Wyoming County but no claim was ever filed by the plaintiff passenger. A hearing was held and testimony taken before a Compensation Referee at which the defendant County of Wyoming appeared by counsel and made no objection to the disallowance of the claim by the Referee. Under these circumstances, the 'defendant County of Wyoming had its day in court on the question of course of employment and Special Term properly granted plaintiffs’ motion to strike that affirmative defense. No notice of the compensation hearing was ever given to the defendants McCall and they in no manner participated in the hearing. If this hearing is used as a bar against them, they will be denied an opportunity of asserting their defense without ever having their day in court on this question. (See Indemnity Ins. Co. v. Buckley, 270 App. Div. 603.) The failure to involve defendants McCall in the compensation hearing and thereby give them an opportunity to sustain their affirmative defense prevents plaintiffs from invoking the doctrine of res judicata as against defendants McCall. Special Term’s order should be modified to reverse that part which struck out the affirmative defense of defendants McCall.