Opinion
Argued October 17, 1983
Decided December 20, 1983
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, CHARLES R. RUBIN, J.
Alexander J. Wulwick, Louis G. Adolfsen and Salvatore A. Mazzoni for defendant and third-party plaintiff-appellant.
Raymond C. Green for Atlantic Repair Co., Inc., third-party defendant-respondent.
William F. Larkin and John P. Connors for Decker Tank Equipment Co. and another, third-party defendants-respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs. The question certified is not answered, as unnecessary.
The Longshoremen's and Harbor Workers' Compensation Act provides that an employer's obligation to compensate an employee under the act "shall be exclusive and in place of all other liability of such employer to the employee * * * and anyone otherwise entitled to recover damages from such employer at law * * * on account of such injury" to the employee (US Code, tit 33, § 905, subd [a]). Plaintiff, an employee of the third-party defendant, Atlantic Repair Co., Inc., received an award of compensation on January 12, 1981, pursuant to a compensation order under the act (see U.S. Code, tit 33, § 919) obligating Atlantic and the State Insurance Fund to provide certain payments to plaintiff. This compensation order precludes defendant Horowitz from maintaining this third-party action for contribution against plaintiff's employer (see Cooper Stevedoring Co. v Kopke, Inc., 417 U.S. 106; Atlantic Coast Line R.R. Co. v Erie Lackawanna R.R. Co., 406 U.S. 340; Halcyon Lines v Haenn Ship Corp., 342 U.S. 282; U.S. Code, tit 33, § 905, subd [a]).
Defendant claims that there is no bar to his third-party claim for contribution. He argues that he may not be bound by the Federal award because he was afforded no notice of or opportunity to appear at the administrative proceeding. Defendant further contends that the award was improperly made because the provisions of the act are inapplicable to plaintiff's injuries as they did not occur in circumstances covered by the act (see US Code, tit 33, § 903, subd [a]).
It is true that the principle of collateral estoppel does not apply here to bar the claim because defendant was not a party or in privity with a party to the proceeding before the Federal agency. In addition, the record does not indicate that he had a fair and full opportunity to litigate the issue before the agency because he had no notice of the proceeding (see S.T. Grand, Inc. v City of New York, 32 N.Y.2d 300, 304). Defendant, however, may not properly controvert the award in a State court. The exclusive means for setting aside Federal compensation orders is by way of an administrative or judicial proceeding in a Federal forum pursuant to the provisions of the act (see Dantes v Western Foundation Corp. Assn., 614 F.2d 299, 300; U.S. Code, tit 33, § 921, subds [c], [e]). Thus, Atlantic's motion to dismiss the third-party complaint was properly granted.
Similarly, the exclusive means for setting aside a State compensation order, which is operating to bar recovery in a State court action, is in a proceeding before the State Workers' Compensation Board and it is the plaintiff who must plead and prove the unavailability of workers' compensation benefits or insurance (see O'Connor v Midiria, 55 N.Y.2d 538, 541; Werner v State of New York, 53 N.Y.2d 346, 355; O'Rourke v Long, 41 N.Y.2d 219, 226).
It was also proper to dismiss the third-party complaint as to Bacolo and Decker Tank Equipment Company. As plaintiff's coemployee, Bacolo is immune from any suit for contribution based upon injuries he may have caused to plaintiff (see Dingler v Halcyon Lijn N.V., 305 F. Supp. 1, 2 [citing U.S. Code Cong Admin News, 1959, 86th Cong, 1st Sess, vol 2, p 2135]; U.S. Code, tit 33, § 933, subd [a]). Decker Tank was sued, as the owner of the leased truck, on the theory that it was vicariously liable for the driver's negligence. Inasmuch as the driver, Bacolo, is statutorily immune from suit, there can be no liability imputed to Decker Tank and no action can be sustained against it (see Naso v Lafata, 4 N.Y.2d 585; Rauch v Jones, 4 N.Y.2d 592; Albarran v City of New York, 56 A.D.2d 822).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.
Order affirmed, etc.