Order, Supreme Court, New York County (Louis B. York, J.), entered June 1, 2004, which denied defendants-appellants’ motion for summary judgment and dismissal of the complaint,
Plaintiff was hired by G. Holdings
Plaintiff subsequently commenced this action. In its answer, G. Holdings raised the affirmative defense that plaintiffs claims were barred by the Workers’ Compensation Law. G. Holdings then moved for summary judgment, arguing, among other things, that Workers’ Compensation Law § 11 precluded the common-law action. In the order appealed, the court denied the
Where an employee is injured in the course of employment, his exclusive remedy against his employer is ordinarily a claim for workers’ compensation benefits (Workers’ Compensation Law § 11). Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law is vested in the Board, and the law is settled that when a plaintiff brings a common-law action against one who may be his “employer,” it is “inappropriate for the courts to express views with respect thereto pending determination by the board” on the issue (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; see Matter of Gallagher v Houlihan Lawrence Real Estate, 259 AD2d 853 [1999]). Accordingly, we modify the order appealed and remand the matter to Supreme Court for referral to the Board to determine plaintiffs employment status and whether he is entitled to benefits (Heifetz v Metropolitan Jewish Geriatric Ctr, 135 AD2d 498 [1987]). Concur—Mazzarelli, J.P., Andrias, Friedman, Gonzalez and Catterson, JJ.
This company was formerly known as Niki Trading Corporation, also named as a defendant in this action.
