2023 New York Laws › WKC - Workers' Compensation › Article 2 - Compensation › 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.