| Catapane v Half Hollow Hills Cent. School Dist. |
| 2007 NY Slip Op 08400 [45 AD3d 517] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Barbara Catapane et al., Respondents, v Half Hollow HillsCentral School District et al., Appellants. |
—[*1] Bornstein & Emanuel, P.C. (Anita Nissan Yehuda, Roslyn Heights, N.Y., of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Suffolk County (Jones, J.), dated November 21, 2006, which deniedtheir motion for summary judgment dismissing the complaint on the ground that the action wasbarred by the Workers' Compensation Law.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Suffolk County, for a new determination on the motionfollowing a prompt application to the Workers' Compensation Board to determine the parties'rights under the Workers' Compensation Law.
The plaintiff Barbara Catapane, a special education paraprofessional at the defendant OtsegoElementary School, was injured when her car was struck by a bus owned by her employer, thedefendant Half Hollow Hills Central School District, and operated by a coemployee, thedefendant James M. Campbell. The plaintiff had just exited the faculty parking lot at the end ofthe school day and was still on school property, namely, the driveway that led from the facultyparking lot to the nearby public street, when the accident occurred. The plaintiff commenced theinstant personal injury action, and the defendants moved for summary judgment dismissing thecomplaint on the ground that the plaintiff was injured in the course of her employment, and thusher action was [*2]barred by the exclusivity provision of theWorkers' Compensation Law. The Supreme Court denied the motion.
"[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 . . . itis therefore inappropriate for the courts to express views with respect thereto pendingdetermination by the board" (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; seeO'Rourke v Long, 41 NY2d 219 [1976]; Augustine v Sugrue, 305 AD2d 437 [2003],lv denied 9 NY3d 805 [2007]; Melo v Jewish Bd. of Family & Children's Servs.,282 AD2d 440, 441 [2001]; Hofrichter v North Shore Univ. Hosp. at Syosset, 271 AD2d649, 650 [2000]; Manetta v Town of Hempstead Day Care Ctr., 248 AD2d 517 [1998];Becker v Clarkstown Cent. School Dist., 157 AD2d 641 [1990]).
Accordingly, prior to rendering a determination on the motion, the Supreme Court shouldhave referred the matter to the Workers' Compensation Board for a hearing and determination asto whether or not the plaintiff is relegated to benefits under the Workers' Compensation Law(see Melo v Jewish Bd. of Family & Children's Servs., 282 AD2d at 441; Hofrichter vNorth Shore Univ. Hosp. at Syosset, 271 AD2d at 650; Manetta v Town of HempsteadDay Care Ctr., 248 AD2d at 517; Becker v Clarkstown Cent. School Dist., 157AD2d at 641).
The plaintiffs' remaining contention regarding estoppel is without merit. Rivera, J.P., Skelos,Fisher and Angiolillo, JJ., concur.