| Bastidas v Epic Realty, LLC |
| 2009 NY Slip Op 00488 [58 AD3d 776] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Ruben Bastidas, Respondent, v Epic Realty, LLC, et al.,Appellants. |
—[*1] The Yankowitz Law Firm, P.C., Great Neck, N.Y., and Krentsel & Guzman, LLP, NewYork, N.Y. (Jack A. Yankowitz, Jeffrey A. Guzman, and The Breakstone Law Firm, P.C. [Jay L.T. Breakstone], of counsel), for respondent (one brief filed).
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Balter, J.), datedFebruary 13, 2008, as denied that branch of their motion which was, in effect, to refer issuesconcerning the plaintiff's employment status to the Workers' Compensation Board fordetermination.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured on May 28, 2004, when he fell from a ladder whileworking in an apartment owned by the defendant Epic Realty, LLC (hereinafter Epic), andmanaged by the defendant Pine Management, Inc. (hereinafter Pine). The plaintiff filed a claimfor workers' compensation benefits in December 2004 naming "Andy Construction" as hisemployer. Finding that "Andy Construction" may have no coverage, the Workers' CompensationBoard (hereinafter the Board) scheduled a hearing for October 5, 2006. The Board subpoenaedPine to appear at the hearing and notified Epic of the hearing. Neither Epic nor Pine assertedbefore the Board that it was the plaintiff's employer. The Board subsequently determined thatAndy Construction was not an insured entity, and closed the case on June 28, 2007, due to theplaintiff's failure to pursue it.
When this matter came on for trial, four months later, the defendants sought to refer issuesconcerning the plaintiff's employment status to the Workers' Compensation Board, asserting thatthe primary jurisdiction of the Board to determine whether the plaintiff had been in their employon the date of his accident could not be defeated by the plaintiff's failure to pursue his claimbefore that [*2]body (see Workers' Compensation Law§§ 11 and 29 [6]; Thompson v Grumman Aerospace Corp., 78 NY2d 553,560 [1991]). The Supreme Court denied that branch of the defendants' motion which was, ineffect, to refer the matter to the Board.
The Workers' Compensation Board has primary jurisdiction to determine factual issuesconcerning coverage under the Workers' Compensation Law (see Botwinick v Ogden, 59NY2d 909, 911 [1983]; Nunes vWindow Network, LLC, 54 AD3d 834 [2008]; Santigate v Linsalata, 304 AD2d639, 640 [2003]). Where "a plaintiff fails to litigate that issue before the Board, 'the court shouldnot express an opinion as to the availability of compensation but remit the matter to the Board' "(O'Hurley-Pitts v Diocese of RockvilleCentre, 57 AD3d 633, 634 [2008], quoting Liss v Trans Auto Sys., 68 NY2d 15,21 [1986]). Here, however, it was not the plaintiff who failed to litigate the compensation issuebefore the Board. Rather, it was the defendants, who, although present before the Board, failed toassert, as they do now, that either was the plaintiff's employer. Moreover, although in answeringthe complaint the defendants raised the exclusivity provision of Workers' Compensation Law§ 29 (6) as an affirmative defense, they did not otherwise assert, during the course of thelitigation or in support of their motion, that they employed the plaintiff on the date of hisaccident. In fact, in a prior appeal from an order denying that branch of their motion which wasfor summary judgment dismissing the plaintiff's Labor Law cause of action, the defendants hadargued affirmatively that they did not employ the plaintiff and that he was a mere volunteer (see Bastidas v Epic Realty, LLC, 47AD3d 861, 862 [2008]). Under these particular circumstances, the defendants were notentitled to raise the primary jurisdiction of the Workers' Compensation Board on the eve of trialand the Supreme Court may properly consider the employment issues raised in connection withthe plaintiff's Labor Law cause of action (see Reliance Ins. Co. of N.Y. v Garsart Bldg.Corp., 122 AD2d 128, 131-132 [1986]). Spolzino, J.P., Florio, McCarthy and Dickerson, JJ.,concur.