Bello v. City of N.Y.

• Citation: 115 N.Y.S.3d 98,178 A.D.3d 648
• Decision Date: 04 December 2019
• Docket Number: Index No. 12957/14,2018–00418
• Parties: James BELLO, Plaintiff, Eric Rosen, Appellant, v. CITY OF NEW YORK, et al., Respondents, et al., Defendants.
• Court: New York Supreme Court Appellate Division

178 A.D.3d 648

115 N.Y.S.3d 98

James BELLO, Plaintiff,Eric Rosen, Appellant,

v.CITY OF NEW YORK, et al., Respondents, et al., Defendants.

2018–00418

Index No. 12957/14

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

Submitted - September 27, 2019

December 4, 2019

Charles H. Burger, Brooklyn, N.Y. (Marvin Ben–Aron of counsel), for appellant.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a consolidated action to recover damages for personal injuries, the plaintiff Eric Rosen appeals from an order of the Supreme Court, Queens County (Howard G. Lane, J.), entered November 9, 2017. The order, insofar as appealed from, granted that branch of the motion of the defendants City of New York, New York City Police Department, and Robert M. Hammer which was for summary judgment dismissing the complaint of the plaintiff Eric Rosen insofar as asserted against the defendants City of New York and Robert M. Hammer.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Eric Rosen allegedly sustained injuries in a motor vehicle accident while working as a volunteer auxiliary police officer for the New York City Police Department (hereinafter NYPD). Rosen was a passenger in an NYPD auxiliary police vehicle operated by auxiliary police officer Robert M. Hammer when it collided with another vehicle. On the day of the accident, an NYPD sergeant completed a form entitled "State of New York Workers' Compensation Board Employer's Report of Work–Related Accident/Occupational Disease," which stated that Rosen was injured in a motor vehicle accident while working as a volunteer auxiliary police officer. The Workers' Compensation Board (hereinafter the Board) ultimately issued a decision regarding Rosen's workers' compensation claim. The Board determined that Rosen sustained a work-related injury to his right shoulder and neck, and authorized Rosen to receive medical treatment, as necessary, for the injury. The decision listed Rosen's employer as "NYC Police Department." Rosen objected to the Board's decision, challenging, inter alia, his classification as an employee of the NYPD for the purposes of the Workers' Compensation Law.

Rosen commenced an action against the City of New York, the NYPD, and Hammer (hereinafter collectively the defendants), among others, to recover damages for personal injuries he allegedly sustained in the accident. That action was consolidated with a personal injury action commenced by another auxiliary police officer involved in the same accident. The defendants thereafter moved, inter alia, for summary judgment dismissing Rosen's complaint insofar as asserted against them based on the exclusivity provisions of the Workers' Compensation Law. In an order entered November 9, 2017, the Supreme Court, inter alia, granted that branch of the defendants' motion. Rosen appeals from so much of the order as granted that branch of the defendants' motion which was for summary judgment dismissing his complaint insofar as asserted against the City and Hammer.

In general, workers' compensation benefits are the sole and exclusive remedy of an employee against an employer for injuries sustained in the course of employment (see Workers' Compensation Law §§ 11, 29[6] ; Weiner v. City of New York , 19 N.Y.3d 852, 854, 947 N.Y.S.2d 404, 970 N.E.2d 427 ; Wilson v. A.H. Harris & Sons, Inc. , 131 A.D.3d 1050, 1051, 16 N.Y.S.3d 589 ). "[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, 224, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; Owens v. Jea Bus Co., Inc. , 161 A.D.3d 1188, 1189, 77 N.Y.S.3d 141 ; Aprile–Sci v. St. Raymond of Penyafort R.C. Church , 151 A.D.3d 671, 672, 55 N.Y.S.3d 421 ). "The issue of 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" ( Owens v. Jea Bus Co., Inc. , 161 A.D.3d at 1189, 77 N.Y.S.3d 141 ; see Alfonso v. Lopez , 149 A.D.3d 1535, 1536, 52 N.Y.S.3d 780 ; Matter of Saratoga Skydiving Adventures v. Workers' Compensation Bd. , 145 A.D.3d 1333, 1334, 42 N.Y.S.3d 696 ; Matter of Rosa v. June Elec. Corp. , 140 A.D.3d 1353, 1355, 34 N.Y.S.3d 654 ; Nunes v. Window Network, LLC , 54 A.D.3d 834, 834, 863 N.Y.S.2d 815 ; Matter of Pilku v. 24535 Owners Corp. , 19 A.D.3d 722, 723, 796 N.Y.S.2d 190 ). "The findings of the Board are final and binding, and a plaintiff may not maintain an action...