Somebody on the crew probably told you that an injured worker cannot sue. He gave you half the rule, and the missing half is the part that matters.
The rule he meant is called the exclusive remedy. It says workers' compensation is your only claim against your employer, but it does not say comp is your only claim.
In New York construction, there is often a second case against the building owner or the general contractor. That case sits on top of your comp claim; it doesn't replace it and it isn't a lawsuit against your boss.
Good tradesmen stay silent for months because they think calling a lawyer means suing the company that signs their checks, but it doesn't. Here is how the two systems actually fit together.
What the Exclusive Remedy Actually Bars
Workers' Compensation Law § 11 states your employer carries no-fault insurance for work injuries. In exchange, you cannot sue your employer in court for negligence, with narrow exceptions. That covers your employer and, in most cases, your direct coworkers, but does not touch anyone else connected to the job.
Comp pays medical care and a portion of lost wages, but not for pain and suffering. It does not account for a lost career, lost pension credits, or a lost annuity. For a serious injury, the gap between what comp pays and what the injury costs can be enormous.
One more thing worth knowing. New York law prohibits an employer from firing or punishing a worker for filing a comp claim, per WCL § 120.
The Third-Party Case: Labor Law 240 and 241(6)
On a construction site, your employer is usually a subcontractor. The owner and the general contractor are separate companies, so the exclusive remedy does not protect them.
New York gives injured construction workers two powerful statutes against owners and GCs. Labor Law § 240(1), the Scaffold Law, covers gravity-related injuries: falls from heights and objects falling on workers. It places absolute liability on owners and general contractors when proper safety devices were not provided. Under § 240, your own comparative negligence is not a defense and does not reduce your recovery.
Labor Law § 241(6) covers violations of New York's Industrial Code: specific safety rules about debris, tripping hazards, equipment, and dozens of other site conditions. Labor Law § 200 adds a general duty to keep the site safe.
These statutes are the core of the firm's construction accident practice. For more on taking a case past comp, see "can I sue beyond workers' comp."
How the Two Claims Work Together
You can hold both claims at the same time. The comp claim pays your medical bills and weekly benefits now. The third-party case against the owner or GC seeks the full loss: pain and suffering, future lost earnings, and the lifetime picture that comp ignores.
For a union member, that lifetime picture includes pension accrual, annuity contributions, and family medical coverage. A wage stub does not capture what a career-ending injury takes from a tradesman three years short of his credits. A third-party case has to be built around that full package.
The comp carrier typically holds a lien on part of the third-party recovery. That is one reason the two claims should be handled together, by counsel who knows both systems.
A construction case is a premises-type negligence claim outside the auto system. So pure comparative negligence under CPLR § 1411(a) applies. A worker who was partly at fault can still recover, with damages reduced by his share. Under § 240, that reduction does not apply at all.
Why This Matters If You Have Not Reported
Most injured construction workers never report. Surveys by the construction safety research center CPWR put the number around three out of four. The reasons are rational: hours are everything, the crew is watching, and nobody wants the light-duty assignment or the complainer label.
An unreported injury loses two things fast: proof and deadlines. In New York, you generally have 30 days to give your employer written notice of a work injury under WCL § 18. You have two years to file the comp claim. The third-party negligence case carries its own three-year clock under CPLR § 214.
Career-enders start as the shoulder you ice after every shift, the back you worked through, and the knee that clicks. If surgery enters the conversation six months from now, the record from the first weeks becomes the case. The steps that protect a claim are laid out in this guide for workers hurt on a New York job site.
How Schwartzapfel Holbrook Handles Exclusive Remedy Questions
When a worker calls about a job-site injury, we look at both tracks from the start. We identify every company on the site: the owner, the general contractor, the construction manager, the other trades. The exclusive remedy question turns on who employed you, not on who was negligent. Sorting that out early shapes everything that follows.
A conversation commits you to nothing. We are selective about the cases we accept. We tell people honestly when comp is the whole claim and when a third-party case exists alongside it. When we take a construction case, we prepare it for trial from the start. Owners and their carriers evaluate a prepared case differently.
Schwartzapfel Holbrook handles a limited number of serious construction and work-injury cases across New York City and Long Island, including Nassau and Suffolk Counties. The work begins with knowing which claims you actually have.
