Williams v. Brentwood Farmers Market, Inc.

—In an action, inter alia, to recover damages for fraud, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Suffolk County (Kitson, J.), entered September 19, 1997, which granted the motion by the third-party defendant to dismiss the third-party action pursuant to CPLR 3211 (a) (7). Ordered that the order is modified by deleting the provision thereof granting that branch of the motion, which was to dismiss the cause of action to recover damages for contribution and substituting therefor a provision denying that branch of 614 the motion; as so modified, the order is affirmed, with costs to the defendants third-party plaintiffs. The gravamen of the main complaint is that the plaintiff’s employer, the defendant Brentwood Farmers Market, Inc., misrepresented to the plaintiff, inter alia, that it “did not have workers’ compensation insurance to cover the injuries sustained by the plaintiff on November 2, 1990”. At least as early as September 1992 the third-party defendant David W. McCarthy commenced his representation of the plaintiff. Although the two-year Statute of Limitations to claim compensation (see, Workers’ Compensation Law § 28) had not yet run at the time that McCarthy was retained, he failed to take any steps to investigate the need to preserve the plaintiff’s right to Workers’ Compensation, and instead appears only to have commenced an action to recover damages for negligence, which would be barred by the exclusivity of the Workers’ Compensation remedy. We accordingly conclude that the third-party defendant breached a duty which caused or augmented the injury for which contribution is sought, i.e., the forfeiture of the plaintiff’s right to Workers’ Compensation benefits (see, Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603; Taft v Shaffer Trucking, 52 AD2d 255). Therefore, the third-party complaint stated a valid cause of action for contribution. Bracken, J. P., Santucci, Florio and McGinity, JJ., concur.