Besaw v. ST. LAWRENCE COUNTY ASSOCIATION FOR RETARDED CHILDREN

• Decision Date: 23 January 2003
• Citation: 754 N.Y.S.2d 111,301 A.D.2d 949
• Parties: JEANNIE M. BESAW et al., Respondents,<BR>v.<BR>ST. LAWRENCE COUNTY ASSOCIATION FOR RETARDED CHILDREN et al., Appellants.
• Court: New York Supreme Court — Appellate Division

301 A.D.2d 949

754 N.Y.S.2d 111

JEANNIE M. BESAW et al., Respondents,

v.ST. LAWRENCE COUNTY ASSOCIATION FOR RETARDED CHILDREN et al., Appellants.

Lahtinen, J.

Decided January 23, 2003.

Mercure, J.P., Peters, Spain and Rose, JJ., concur.

Lahtinen, J.

Plaintiff Jeannie M. Besaw (hereinafter plaintiff), a 27-year-old retarded woman who suffers from spinal bifida and is confined to a wheelchair, is a participant in a sheltered workshop program sponsored by defendant St. Lawrence County Association for Retarded Children (hereinafter ARC). On August 13, 1999, plaintiff was injured in a motor vehicle accident while being transported in an ARC van. Plaintiff was thrown from her wheelchair and received severe injuries, including multiple leg fractures and dislocation of her hips. On August 22, 2001, plaintiff and her mother, on her behalf, commenced this action against ARC and the driver of the van, alleging that the driver had operated the vehicle in a negligent manner and failed to properly secure plaintiff's wheelchair. After joinder of issue, defendants moved for summary judgment dismissing the complaint, arguing that plaintiff had an employment relationship with ARC, that her injuries occurred while she was acting within the scope of her employment and that her cause of action was barred by the exclusivity provision of the Workers' Compensation Law. Supreme Court stayed the action pending a determination by the Workers' Compensation Board as to whether or not plaintiff was entitled to benefits under the Workers' Compensation Law. Defendants appeal.

Defendants argue that it was error to order a stay of the action until the Board rendered a decision because the issue before Supreme Court was one of pure statutory construction. We disagree. Mental Hygiene Law § 33.09 (c) provides that persons participating in sheltered workshop programs may be eligible for workers' compensation benefits if the agency for whom they are working elects to provide such coverage, as ARC does. However, the relevant issue before Supreme Court was whether or not plaintiff was employed by ARC and acting within the scope of that employment at the time her injuries occurred. Such an inquiry involves questions of fact to be resolved by the Board (see O'Rourke v Long, 41 NY2d 219, 224). Moreover, "[i]t is settled in New York that where a mixed question of law and fact exists concerning the applicability of the Workers' Compensation Law, the matter should be remitted to the Workers' Compensation Board for conclusive determination" (Butler v N & M Contr. Co., 199 AD2d 590, 591). The Board has primary jurisdiction with respect to such determinations (see Botwinick v Ogden, 59 NY2d 909, 911) and, therefore, defendants "`may not choose the courts as the forum for the resolution of such questions'" (Corp v State of New York, 257 AD2d 742, 743, quoting O'Rourke v Long, ...