Opinion
August 12, 1985
Appeal from the Supreme Court, Queens County (Lerner, J.).
Order dated September 19, 1984, reversed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Queens County, with direction to refer the case to the Workers' Compensation Board for a factual hearing to determine the rights, if any, of plaintiff to benefits under the provisions of the Workers' Compensation Law. Order dated September 25, 1984, reversed, without costs or disbursements, defendant's motion granted and the trial of this action stayed pending determination by the Workers' Compensation Board as to whether plaintiff has a right to benefits, and thereafter, the determination by Special Term of plaintiff's cross motion to strike defendant's fourth affirmative defense.
By its own terms, the decision of the Workers' Compensation Judge did not constitute a final determination of the Workers' Compensation Board. Therefore, Trial Term properly denied plaintiff's cross motion to strike the workers' compensation defense. However, Trial Term erred in denying defendant's motion for a stay of the trial of this action pending a final determination by the Workers' Compensation Board as to plaintiffs' eligibility for workers' compensation benefits. "[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board and 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; O'Rourke v. Long, 41 N.Y.2d 219). Here, as in Gyory v. Radgowski ( 89 A.D.2d 867, 869), "[t]he case should be referred back to the Workers' Compensation Board to hold a factual hearing at which evidence will be received, and upon which the board can make a reasoned, factual determination as to whether * * * [plaintiff] has a valid third-party action or whether * * * [she] is relegated to benefits under the Workers' Compensation Law" ( see also, Botwinick v. Ogden, supra; Peckham v Peckham Materials Corp., 102 A.D.2d 884). If the board should determine that plaintiff was not in the course of her employment when the accident occurred, then her cross motion to strike the fourth affirmative defense of workers' compensation should be granted. In the event the board determines, after a factual hearing, that plaintiff was in the course of her employment when the accident occurred, the action should be dismissed and plaintiff may pursue her workers' compensation claim. Thompson, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.