Can You Get Workers’ Comp and a Lawsuit in New York?

The short answer: comp from your employer, a lawsuit against others

New York’s workers’ compensation system is a trade-off. You receive medical care and wage replacement without having to prove anyone was at fault, and in exchange you generally give up the right to sue your employer for negligence. Lawyers call this the “exclusive remedy” rule, so a direct lawsuit against your own boss for a typical workplace accident is off the table.

But that bar protects only your employer and co-workers. If someone else caused or contributed to your injury, you can bring a separate personal injury claim against that party while still collecting comp. This is called a third-party claim, and for many injured workers it is where the real recovery comes from.

What workers’ comp covers, and what it does not

Workers’ compensation pays for your authorized medical treatment, a portion of your lost wages, and benefits for permanent impairment. It is no-fault, which means you can recover even if the accident was partly your own doing. The trade-off is that comp does not pay for one of the largest categories of harm: pain and suffering. It also caps your weekly wage benefit.

A third-party lawsuit can reach those uncompensated losses, including pain and suffering, full lost earnings, and loss of enjoyment of life. That is the core reason the two paths often run side by side.

Who can be a “third party” you can sue

A third party is any person or business, other than your employer or a fellow employee, whose negligence played a role in your injury. Common examples include:

• A general contractor or property owner on a construction site where you were a subcontractor’s employee.
• The driver of another vehicle if you were hurt in a crash while working.
• The manufacturer of a defective machine, tool, or piece of equipment.
• An outside maintenance, security, or cleaning company that created a hazard.
• A property owner who failed to fix a dangerous condition.

Construction injuries and New York’s Labor Law

New York gives construction and building-trade workers unusually strong protections that frequently support a third-party case. Labor Law §240 (the “Scaffold Law”) holds owners and general contractors strictly liable for gravity-related injuries such as falls from heights or being struck by falling objects. Labor Law §241(6) covers violations of specific Industrial Code safety rules, and Labor Law §200 codifies the general duty to provide a safe workplace. These statutes let an injured worker sue an owner or general contractor even though comp blocks a suit against the direct employer.

How the two systems interact: the comp lien

You do not get to keep two full recoveries for the same injury. When you win or settle a third-party lawsuit, your workers’ comp insurer typically has a lien and is repaid for what it paid out, reduced by your share of litigation costs under New York’s Workers’ Compensation Law §29 framework. Important: you generally must obtain the comp carrier’s consent (or a court order) before settling the third-party case, or you risk forfeiting future comp benefits. Coordinating the two claims is technical, which is why having counsel handle both together matters.

How case value is determined

No honest lawyer can promise a number, and prior results never guarantee future outcomes. The value of a third-party claim depends on factors such as:

• The severity and permanence of your injuries and the medical care required.
• Your past and future lost earnings and reduced earning capacity.
• The strength of the liability evidence against the third party.
• Your degree of comparative fault, which can reduce recovery under CPLR §1411.
• The size of the comp lien that must be repaid from any recovery.
• The available insurance coverage of the responsible party.

Deadlines you cannot miss

Move quickly, because the two systems run on different clocks. A workers’ compensation claim generally must be filed within two years, and your employer should be notified in writing within 30 days. A third-party personal injury lawsuit is usually subject to the three-year statute of limitations under CPLR §214. If a public entity is involved, a Notice of Claim is required within 90 days under GML §50-e, with a much shorter window to sue. Missing any of these can permanently end that part of your case.

What to do next

Report the injury to your employer in writing, get prompt medical treatment, and open your workers’ comp claim. Then preserve evidence about anyone other than your employer who may have contributed, including photos, the names of contractors on site, and the equipment involved. Have a New York personal injury attorney evaluate whether a third-party claim exists before you sign anything or settle, so the comp lien and consent rules are handled correctly.

Frequently asked questions