| Dunn v American Tr. Ins. Co. |
| 2010 NY Slip Op 01757 [71 AD3d 629] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Joseph F. Dunn, Respondent, v American TransitInsurance Co., Appellant. |
—[*1] Robert B. Taylor, New Rochelle, N.Y., for respondent.
In an action to recover first-party no-fault benefits pursuant to a policy of insurance, thedefendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), datedFebruary 27, 2009, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (a)(2) for lack of subject matter jurisdiction or, in the alternative, for summary judgment dismissingthe complaint.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Queens County, for a new determination of the motionfollowing a prompt application by the plaintiff to the Workers' Compensation Board to determinehis rights under the Workers' Compensation Law.
"[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]; Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d 517[2007]). In this case, the defendant's motion presented factual questions as to the plaintiff's"status as either an independent contractor, as he claims he is, or as an employee of" a car servicedispatch base, as the defendant claims (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262,269 [1991]). Resolution of these questions "is best suited for determination by the [Workers'Compensation] Board, given its expertise in the area" (id. at 269). Accordingly, prior torendering a determination on the motion, the Supreme Court should have referred the matter tothe Workers' Compensation Board for a hearing and determination as to whether the plaintiff isrelegated to benefits under the Workers' Compensation Law (see Catapane v Half HollowHills Cent. School Dist., 45 AD3d at 518-519; Arvatz v Empire Mut. Ins. Co., 171AD2d at 269). Covello, J.P., Miller, Dickerson and Belen, JJ., concur.