Botwinick v. Ogden

| NY | Jun 16, 1983

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court with direction to defer disposition of appellants’ motion to dismiss the complaint until final resolution of a prompt application to determine the rights if any of respondents to benefits under the provisions of the Workers’ Compensation Law.

In O’Rourke v Long (41 NY2d 219)^* we held that primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and that it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board. Application of the principles enunciated in O’Rourke to the present case requires that disposition of the motion of Conde Nast Publications and Dr. Ogden to dismiss the complaint herein be held in abeyance pending determination by the Workers’ Compensation Board as to the applicability of the Workers’ Compensation Law to the claims asserted by respondents. By like token we now refrain from expression of any views with respect to the merits of the motion to dismiss.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order reversed, without costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.

* We observe that our decisions in Garcia v Iserson (33 NY2d 421) and Golini v Nachtigall (38 NY2d 745) antedated our decision in O’Rourke and were made without reference to the procedural rule of primary jurisdiction announced in O’Rourke.