VERLEY DAVIS, JR., PLAINTIFF–RESPONDENT, v. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, DEFENDANT–APPELLANT, ET AL., DEFENDANT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: In an action seeking damages for injuries that plaintiff allegedly sustained while participating in the “Enrollment in Work Experience” program, Erie County Department of Social Services (defendant) appeals from an order denying its motion to dismiss the complaint against it on the ground that workers' compensation benefits are plaintiff's exclusive remedy. We conclude that Supreme Court erred in entertaining the 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 (Botwinick v. Ogden, 59 N.Y.2d 909, 911). “Where, as here, there is an issue of fact whether an injured plaintiff is an employee within the meaning of the Workers' Compensation Law, he or she ‘may not choose the courts as the forum for the resolution’ of that issue” (McGee v. Van Erden, 66 AD3d 1426, 1427, quoting O'Rourke v. Long, 41 N.Y.2d 219, 228). Thus, the court “should not have entertained [defendant's] motion at this juncture, and the case should have been referred to the Board for a determination” whether plaintiff has a valid cause of action for damages or whether he is limited to benefits under the Workers' Compensation Law (Gullo v Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc., 114 AD3d 905, 906–907). We therefore reverse the order and remit the matter to Supreme Court to determine the motion after final resolution of a prompt application to the Board to determine plaintiff's rights, if any, to workers' compensation benefits (see McGee, 66 AD3d at 1427).
Frances E. Cafarell
Clerk of the Court