Opinion
2002-00665
Argued September 17, 2002.
October 7, 2002.
In an action to recover damages for personal injuries, the defendants Shames Realty, LLC and Electro Industries, a Division of EI Electric, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered December 20, 2001, as denied their motion for conditional summary judgment on their cross claim for common-law indemnification against the defendant Elton Contracting, Inc., and granted that branch of the cross motion of the defendant Elton Contracting, Inc., which was for summary judgment dismissing that cross claim.
Perez Furey, Uniondale, N.Y. (John W. Quinn of counsel), for appellants.
Michael F.X. Manning, Melville, N.Y. (David R. Holland of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination on the motion and cross motion following a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law.
The plaintiff was hired by the defendant Elton Contracting, Inc. (hereinafter Elton), to perform interior renovations on premises leased by the defendant Electro Industries, a Division of EI Electric, Inc., from the defendant Shames Realty, LLC (hereinafter collectively referred to as Shames/Electro). While working on the project, the plaintiff fell and was injured. Finding that the plaintiff was a special employee whose exclusive remedy was Workers' Compensation benefits, the Supreme Court denied the motion of Shames/Electro for conditional summary judgment on their cross claim against Elton for common-law indemnification, and granted Elton's motion for summary judgment dismissing, inter alia, that cross claim.
The plaintiff testified at a deposition that he had not filed for Workers' Compensation benefits. It is established that "primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board and that it 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). Moreover, applicability of Workers' Compensation as the plaintiff's exclusive remedy depends upon the Workers' Compensation Board's determination of the plaintiff's entitlement to Workers' Compensation benefits (see Liss v. Trans Auto Sys., 68 N.Y.2d 15, 21).
Accordingly, the Supreme Court should not have decided the respective motions for summary judgment of Elton and Shames/Electro, and the matter should be referred to the Workers' Compensation Board for a determination as to whether the plaintiff was a special employee of Elton (see White v. Marriott Mgt. Servs., 283 A.D.2d 639; Melo v. Jewish Bd. of Family Children's Servs., 282 A.D.2d 440; Bohorquez v. Rikud Realty, 280 A.D.2d 628; Galdemis v. Brook, 273 A.D.2d 352; Hofrichter v. North Shore Univ. Hosp. at Syosset, 271 A.D.2d 649; Manetta v. Town of Hempstead Day Care Ctr., 248 A.D.2d 517).
In light of our determination, we do not reach the parties' remaining contentions.
FEUERSTEIN, J.P., McGINITY, LUCIANO and SCHMIDT, JJ., concur.