Aprile-Sci v. St. Raymond of Penyafort R.C. Church

• Decision Date: 07 June 2017
• Parties: Kathleen APRILE–SCI, et al., respondents, v. ST. RAYMOND OF PENYAFORT R.C. CHURCH, appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 671

55 N.Y.S.3d 421

Kathleen APRILE–SCI, et al., respondents,

v.ST. RAYMOND OF PENYAFORT R.C. CHURCH, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 7, 2017.

Mulholland, Minion, Duffy, Davey, McNiff & Beyrer, Williston Park, NY (Christine M. Gibbons and Brian R. Davey of counsel), for appellant.

Sepe & O'Mahony, PLLC, Rockville Centre, NY (Michael Sepe, William J. O'Mahony, and Farrell J. Miller of counsel), for respondents.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, RUTH C. BALKIN, and BETSY BARROS, JJ.

Appeal from an order of the Supreme Court, Nassau County (John M. Galasso, J.), entered March 4, 2015. The order denied the defendant's motion, in effect, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion, in effect, for summary judgment dismissing the complaint is granted.

Kathleen Aprile–Sci (hereinafter the injured plaintiff) was a parishioner and volunteer Eucharistic Minister at St. Raymond of Penyafort R.C. Church (hereinafter the church). On November 20, 2011, she allegedly was injured during a church service when she tripped and fell over an exposed power cord near or on the altar as she went to volunteer to distribute Communion. The church is a parish within the Roman Catholic Diocese of Rockville Centre (hereinafter the Diocese), which was self-insured with a Workers' Compensation policy that extended coverage to volunteers. The church applied to the Workers' Compensation Board (hereinafter the WCB) for a determination of the injured plaintiff's eligibility for benefits. The injured plaintiff, who was represented by counsel, was notified on multiple occasions by the Diocese's claims adjuster that a claim had been filed and her exclusive remedy was Workers' Compensation. The WCB also informed her of the proceedings. Disagreeing that she was eligible for Workers' Compensation, the injured plaintiff took no action in the WCB proceeding. By decision dated September 10, 2013, the WCB determined that she had a work-related injury and was entitled to benefits. The injured plaintiff did not file an objection to the WCB determination.

The injured plaintiff, and her husband suing derivatively, commenced this personal injury action against the church. The church moved, in effect, for summary judgment dismissing the complaint based on the exclusivity provisions of the Workers' Compensation Law (see Workers' Compensation Law §§ 11, 29 [6 ] ). The Supreme Court denied the motion, finding triable issues of fact as to whether the injured plaintiff was acting as a covered volunteer or as a parishioner at the time of her accident. The church appeals.

"[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 v. Ogden, 59 N.Y.2d 909, 911, 466 N.Y.S.2d 291, 453 N.E.2d 520 ; see O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; Nunes v. Window Network, LLC, 54 A.D.3d 834, 863 N.Y.S.2d 815 ; Hofrichter v. North Shore Univ. Hosp., 271 A.D.2d 649, 707 N.Y.S.2d 639 ). "[W]here the availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions" (O'Rourke v. Long, 41 N.Y.2d at 228, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; see Cunningham v. State of New York, 60 N.Y.2d 248, 252, 469 N.Y.S.2d 588, 457 N.E.2d 693 ). "[A] plaintiff has no choice but to litigate this issue before the Board" (Liss v. Trans Auto Sys., 68 N.Y.2d 15, 21, 505 N.Y.S.2d 831, 496 N.E.2d 851 ). Thus, the question of whether a particular person is an employee within the meaning of the Workers' Compensation Law is for the WCB to determine in the first instance (see McGee v. Van Erden, 66 A.D.3d 1426, 885 N.Y.S.2d 864 ; Nunes v. Window Network, LLC, 54 A.D.3d at 835, 863 N.Y.S.2d 815 ; Hofrichter v. North Shore Univ. Hosp. at Syosset, 271 A.D.2d at 650, 707 N.Y.S.2d 639 ; Corp v. State of New York, 257 A.D.2d 742, 682 N.Y.S.2d 738 ). The findings of the WCB are final and conclusive unless reversed on direct appeal (see Workers' Compensation Law § 23 ), and are not subject to collateral attack in a plenary action (see Cunningham v. State of New York, 60 N.Y.2d at 253, 469 N.Y.S.2d 588, 457 N.E.2d 693 ; Matter of Rosa v. June Elec. Corp., 140 A.D.3d 1353, 1357, 34 N.Y.S.3d 654 ). This is so even where, as here, the employer has filed a compensation claim on the employee's behalf and the employee did not herself apply for or accept benefits (see O'Connor v. Midiria, 55 N.Y.2d 538, 541, 450 N.Y.S.2d 455, 435 N.E.2d 1070 ). "Whether the employee or the employer first brings the injury to the attention of the board, a...