CARLOS M. SUAREZ ALFONSO, PLAINTIFF–APPELLANT, v. EDWIN R. LOPEZ, ET AL., DEFENDANTS, AND UNITED PARCEL SERVICE, INC., DEFENDANT–RESPONDENT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained in an accident that occurred while he was working on the premises of United Parcel Service, Inc. (defendant). Plaintiff alleged that he was hired by a nonparty to this action to perform work at defendant's facility. After the accident, however, plaintiff filed a workers' compensation claim that listed defendant as his employer, and the Workers' Compensation Board (Board) issued five decisions that listed defendant as plaintiff's employer and ordered that defendant pay benefits to plaintiff. In lieu of answering, defendant moved to dismiss the complaint against it on the ground that plaintiff's claims are barred by the Workers' Compensation Law. Supreme Court granted the motion, and we affirm.
The Court of Appeals has long held that, “as to an employer, where workmen's compensation provides a remedy, the remedy that it provides, save for the rare case, is exclusive. Where liability is imposed upon an employer to provide workmen's compensation and compensation is provided, that liability is exclusive and in the stead of any other employer liability whatsoever” (O'Rourke v. Long, 41 N.Y.2d 219, 221; see Weiner v. City of New York, 19 NY3d 852, 854; O'Connor v. Midiria, 55 N.Y.2d 538, 540–541). When there are questions of fact concerning the availability of workers' compensation benefits, “ ‘the plaintiff may not choose the courts as the forum for the resolution of such questions.’ The Workers' Compensation Board ․ has primary jurisdiction over the issue of the availability of coverage ․, and a plaintiff has no choice but to litigate this issue before the Board” (Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20–21). Thus, the issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board (see Besaw v St. Lawrence County Assn. for Retarded Children, 301 A.D.2d 949, 949–950; Matter of Hofsiss v Board of Educ. of Mamaroneck Union Free Sch. Dist., 287 A.D.2d 566, 567–568; Corp v. State of New York, 257 A.D.2d 742, 743).
Here, plaintiff initiated a workers' compensation claim against defendant and has continually received benefits from defendant since March 2015. We therefore conclude that the court properly dismissed plaintiff's complaint against defendant because the workers' compensation benefits that he is receiving are his sole remedy against defendant at this juncture (see generally Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 560; Tomushunas v. Designcrete of Am., LLC, 113 AD3d 1142, 1142; Degruchy v. Xerox Corp., 188 A.D.2d 1003, 1003). Moreover, should the Board ultimately decide that defendant was not plaintiff's special employer, plaintiff's remedy would be either to move to vacate the order dismissing the complaint against defendant pursuant to CPLR 5015(a)(5) (see Dupkanicova v. James, 17 AD3d 627, 628), or to commence a new action against defendant within six months of the Board's decision pursuant to CPLR 205(c) (see Cunningham v. State of New York, 60 N.Y.2d 248, 253; Corp, 257 A.D.2d at 743).
Frances E. Cafarell
Clerk of the Court