| Rosario v Montalvo & Son Auto Repair Ctr., Ltd. |
| 2010 NY Slip Op 06576 [76 AD3d 963] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Luis Rosario, Respondent, v Montalvo & Son Auto RepairCenter, Ltd., Appellant, et al., Defendant. |
—[*1] Adam D. White, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant Montalvo & Son AutoRepair Center, Ltd., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Saitta, J.), dated August 10, 2009, as granted the plaintiff's motion toconfirm a referee's report dated October 20, 2008, which, after a hearing, found that the plaintiffwas injured while employed by the defendant Montalvo & Son Auto Repair Center, Ltd., onApril 24, 2007, and was injured during the course of such employment, and granted thosebranches of the plaintiff's separate cross motion which were for summary judgment dismissingthe fourth and fifth affirmative defenses asserted by the defendant Montalvo & Son Auto RepairCenter, Ltd.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, theplaintiff's motion to confirm the referee's report, and those branches of his separate cross motionwhich were for summary judgment dismissing the fourth and fifth affirmative defenses assertedby the defendant Montalvo & Son Auto Repair Center, Ltd., are denied, and the matter isremitted to the Supreme Court, Kings County, for a new determination of those branches of theplaintiff's cross motion which were for summary judgment dismissing the fourth and fifthaffirmative defenses asserted by the defendant Montalvo & Son Auto Repair Center, Ltd., afterfinal resolution of a prompt application to the Workers' Compensation Board to determine theparties' 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" (Botwinick vOgden, 59 NY2d 909, 911 [1983]). Since questions of fact were raised as to whether theplaintiff was an employee of the defendant and was injured during the course of such allegedemployment, the Supreme Court should not have referred the matter for a determination by areferee and then confirmed the referee's report (see Dunn v American Tr. Ins. Co., 71 AD3d 629, 630 [2010]; Nunes v Window Network, LLC, 54AD3d 834, 835 [2008]). Rather, the Supreme Court should have referred the matter to theWorkers' Compensation Board (see Dunn v American Tr. Ins. Co., 71 AD3d at 630;Nunes v Window Network, LLC, 54 AD3d at 835).
Moreover, in confirming the referee's report, the Supreme Court misapplied the [*2]doctrine of inconsistent positions or judicial estoppel (see FordMotor Credit Co. v Colonial Funding Corp., 215 AD2d 435, 436 [1995]). That doctrineapplies when a party has assumed a certain position in a prior legal proceeding and secured afavorable judgment therein, which thereby precludes that party from assuming a contrary positionin another action simply because its interests have changed (see European Am. Bank vMiller, 265 AD2d 374 [1999]; Ford Motor Credit Co. v Colonial Funding Corp., 215AD2d at 436; Kimco of N.Y. v Devon, 163 AD2d 573, 574-575 [1990]). Since there wasno prior legal proceeding wherein the defendant had successfully argued that the plaintiff was itsemployee, the doctrine of judicial estoppel was not applicable (see Bono v Cucinella, 298AD2d 483, 484 [2002]; European Am. Bank v Miller, 265 AD2d at 374). Mastro, J.P.,Florio, Belen and Chambers, JJ., concur.