| O'Hurley-Pitts v Diocese of Rockville Ctr. |
| 2008 NY Slip Op 09765 [57 AD3d 633] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mMichael O'Hurley-Pitts, Appellant, v Diocese of RockvilleCentre et al., Respondents. |
—[*1] Mulholland, Minion, & Roe, Williston Park, N.Y. (Brian R. Davey and Taryn M. Fitzgerald ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Nassau County (De Maro, J.), dated April 27, 2007, which granted the defendants'motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter isremitted to the Supreme Court, Nassau County, for a new determination of the motion after finalresolution of a prompt application to the Workers' Compensation Board to determine the parties' rightsunder the Workers' Compensation Law.
Pursuant to a contract with the defendant Church of Saint Mary (hereinafter the church), theplaintiff "fulfill[ed] the duties normally ascribed to the Director of Development" for an eight-monthperiod commencing on February 1, 2005. On June 8, 2005, the plaintiff slipped on a puddle of wateron church premises and fell to the floor. The plaintiff never applied for, and never received, workers'compensation benefits.
The plaintiff commenced this action against the church and the Diocese of Rockville Centre torecover damages for the injuries he allegedly sustained as a result of his fall. The defendants moved forsummary judgment dismissing the complaint. The Supreme Court concluded that, contrary to thedefendants' contention, there were triable issues of fact as to whether church [*2]employees created or had actual or constructive notice of the allegedlydefective condition that caused the plaintiff's accident. The court, however, granted the defendants'motion for summary judgment on the ground that the plaintiff was a special employee of the church, andthus was barred from recovery pursuant to Workers' Compensation Law § 11. The plaintiffappeals.
The record demonstrates that on the day of the plaintiff's accident church employees were repairingan air conditioning unit, that the puddle of water on which the plaintiff slipped was in the location wherethat work had been performed, and that church employees were aware of water leaks resulting fromthe air conditioning work. Thus, the defendants failed to establish the absence of a triable issue of factas to whether church employees created or had actual or constructive notice of the allegedly defectivecondition (see Greenstein v R & R of G.C.,Inc., 50 AD3d 637 [2008]; Panettav Phoenix Beverages, Inc., 29 AD3d 659 [2006]; see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]), and the Supreme Court correctly determined that they werenot entitled to summary judgment on that ground.
There has been no determination by the Workers' Compensation Board as to whether the plaintiffis entitled to workers' compensation benefits for his injuries (cf. Thompson v Grumman AerospaceCorp., 78 NY2d 553 [1991]). The Court of Appeals has held that the Workers' CompensationBoard "has primary jurisdiction over the issue of the availability of [workers' compensation] coverage,"and if a plaintiff fails to litigate that issue before the Board, "the court should not express an opinion asto the availability of compensation but remit the matter to the Board," since "[t]he compensation claim isa jurisdictional predicate to the civil action" (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986];see Botwinick v Ogden, 59 NY2d 909 [1983]; O'Rourke v Long, 41 NY2d 219[1976]). Accordingly, in considering the defendants' motion, the Supreme Court should not haveentertained their contention that the plaintiff was barred from recovery pursuant to Workers'Compensation Law § 11. The case must be referred to the Workers' Compensation Board for adetermination as to whether the plaintiff has a valid cause of action for damages or whether he isrelegated to benefits under the Workers' Compensation Law (see Kayen v Shames Realty,298 AD2d 362 [2002]; White v Marriott Mgt. Servs., 283 AD2d 639 [2001]; Manetta vTown of Hempstead Day Care Ctr., 248 AD2d 517 [1998]). Prudenti, P.J., Skelos, Covello andBalkin, JJ., concur.