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

417
CA 16-00863
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


CARLOS M. SUAREZ ALFONSO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

EDWIN R. LOPEZ, ET AL., DEFENDANTS,
AND UNITED PARCEL SERVICE, INC.,
DEFENDANT-RESPONDENT.


SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (STEVEN WILLIAMS OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

ANSA ASSUNCAO, LLP, WHITE PLAINS (THOMAS O. O’CONNOR OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (Hugh
A. Gilbert, J.), entered February 9, 2016. The order granted the
motion of defendant United Parcel Service, Inc., to dismiss the
complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained in an accident that occurred while he
was working on the premises of United Parcel Service, Inc.
(defendant). Plaintiff alleged that he was hired by a nonparty to
this action to perform work at defendant’s facility. After the
accident, however, plaintiff filed a workers’ compensation claim that
listed defendant as his employer, and the Workers’ Compensation Board
(Board) issued five decisions that listed defendant as plaintiff’s
employer and ordered that defendant pay benefits to plaintiff. In
lieu of answering, defendant moved to dismiss the complaint against it
on the ground that plaintiff’s claims are barred by the Workers’
Compensation Law. Supreme Court granted the motion, and we affirm.

     The Court of Appeals has long held that, “as to an employer,
where workmen’s compensation provides a remedy, the remedy that it
provides, save for the rare case, is exclusive. Where liability is
imposed upon an employer to provide workmen’s compensation and
compensation is provided, that liability is exclusive and in the stead
of any other employer liability whatsoever” (O’Rourke v Long, 41 NY2d
219, 221; see Weiner v City of New York, 19 NY3d 852, 854; O’Connor v
Midiria, 55 NY2d 538, 540-541). When there are questions of fact
concerning the availability of workers’ compensation benefits, “ ‘the
                                 -2-                           417
                                                         CA 16-00863

plaintiff may not choose the courts as the forum for the resolution of
such questions.’ The Workers’ Compensation Board . . . has primary
jurisdiction over the issue of the availability of coverage . . . ,
and a plaintiff has no choice but to litigate this issue before the
Board” (Liss v Trans Auto Sys., 68 NY2d 15, 20-21). Thus, the issue
whether a plaintiff was acting as an employee of a defendant at the
time of the injury is a question of fact to be resolved by the Board
(see Besaw v St. Lawrence County Assn. for Retarded Children, 301 AD2d
949, 949-950; Matter of Hofsiss v Board of Educ. of Mamaroneck Union
Free Sch. Dist., 287 AD2d 566, 567-568; Corp v State of New York, 257
AD2d 742, 743).

     Here, plaintiff initiated a workers’ compensation claim against
defendant and has continually received benefits from defendant since
March 2015. We therefore conclude that the court properly dismissed
plaintiff’s complaint against defendant because the workers’
compensation benefits that he is receiving are his sole remedy against
defendant at this juncture (see generally Thompson v Grumman Aerospace
Corp., 78 NY2d 553, 560; Tomushunas v Designcrete of Am., LLC, 113
AD3d 1142, 1142; Degruchy v Xerox Corp., 188 AD2d 1003, 1003).
Moreover, should the Board ultimately decide that defendant was not
plaintiff’s special employer, plaintiff’s remedy would be either to
move to vacate the order dismissing the complaint against defendant
pursuant to CPLR 5015 (a) (5) (see Dupkanicova v James, 17 AD3d 627,
628), or to commence a new action against defendant within six months
of the Board’s decision pursuant to CPLR 205 (c) (see Cunningham v
State of New York, 60 NY2d 248, 253; Corp, 257 AD2d at 743).




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
