        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1239
CA 15-00592
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


VERLEY DAVIS, JR., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MUSCATO & SHATKIN, LLP, BUFFALO (MARC SHATKIN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered June 23, 2014 in a personal injury action. The
order denied the motion of defendant Erie County Department of Social
Services seeking to dismiss the complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the matter is
remitted to Supreme Court, Erie County, for further proceedings in
accordance with the following memorandum: In an action seeking
damages for injuries that plaintiff allegedly sustained while
participating in the “Enrollment in Work Experience” program, Erie
County Department of Social Services (defendant) appeals from an order
denying its motion to dismiss the complaint against it on the ground
that workers’ compensation benefits are plaintiff’s exclusive remedy.
We conclude that Supreme Court erred in entertaining the motion. It
is well settled that “primary jurisdiction with respect to
determinations as to the applicability of the Workers’ Compensation
Law has been vested in the Workers’ Compensation Board [(Board)] . . .
[I]t is therefore inappropriate for the courts to express views with
respect thereto pending determination by” the Board (Botwinick v
Ogden, 59 NY2d 909, 911). “Where, as here, there is an issue of fact
whether an injured plaintiff is an employee within the meaning of the
Workers’ Compensation Law, he or she ‘may not choose the courts as the
forum for the resolution’ of that issue” (McGee v Van Erden, 66 AD3d
1426, 1427, quoting O’Rourke v Long, 41 NY2d 219, 228). Thus, the
court “should not have entertained [defendant’s] motion at this
juncture, and the case should have been referred to the Board for a
determination” whether plaintiff has a valid cause of action for
damages or whether he is limited to benefits under the Workers’
Compensation Law (Gullo v Bellhaven Ctr. for Geriatric &
                                 -2-                          1239
                                                         CA 15-00592

Rehabilitative Care, Inc., 114 AD3d 905, 906-907). We therefore
reverse the order and remit the matter to Supreme Court to determine
the motion after final resolution of a prompt application to the Board
to determine plaintiff’s rights, if any, to workers’ compensation
benefits (see McGee, 66 AD3d at 1427).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
