WARREN v. MILITELLO CONCRETE INC (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the complaint against defendant Verizon New York, Inc. is reinstated, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum:  Plaintiffs commenced this negligence action to recover damages for injuries sustained by Gary E. Warren (plaintiff) on the sidewalk outside the offices of his employer, Verizon New York, Inc. (defendant).  Plaintiffs appeal from an order and judgment granting defendant's motion for summary judgment dismissing the complaint against it on the ground that plaintiffs' exclusive remedy was workers' compensation benefits.

Although not raised by the parties, we conclude that Supreme Court erred in entertaining defendant's motion.  “It is well settled that ‘primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board [ (Board) ] ․ [I]t is therefore inappropriate for the courts to express views with respect thereto pending determination by’ the Board” (Brown v. Hall, 139 A.D.3d 1404, 1405, 31 N.Y.S.3d 384 [4th Dept. 2016], quoting Botwinick v. Ogden, 59 N.Y.2d 909, 911, 466 N.Y.S.2d 291, 453 N.E.2d 520 [1983];  see O'Rourke v. Long, 41 N.Y.2d 219, 227–228, 391 N.Y.S.2d 553, 359 N.E.2d 1347 [1976]).  Whether plaintiff was injured within the scope of his employment “must in the first instance be determined by the [B]oard” (O'Rourke, 41 N.Y.2d at 228, 391 N.Y.S.2d 553, 359 N.E.2d 1347), and the court thus should not have entertained defendant's motion at this juncture.  Rather, the case should have been referred to the Board for a determination of plaintiffs' eligibility for workers' compensation benefits (see Brown, 139 A.D.3d at 1405, 31 N.Y.S.3d 384).  We therefore reverse the order and judgment, reinstate the complaint against defendant, and remit the matter to Supreme Court to determine the motion after final resolution of an application to the Board to determine plaintiffs' rights, if any, to workers' compensation benefits (see id. at 1405–1406, 31 N.Y.S.3d 384).