Botwinick v. Ogden

• Decision Date: 16 June 1983
• Citation: 466 N.Y.S.2d 291,453 N.E.2d 520,59 N.Y.2d 909
• Parties: , 453 N.E.2d 520 Sylvia BOTWINICK et al., Respondents, v. Herbert S. OGDEN et al., Appellants, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 291

466 N.Y.S.2d 291

59 N.Y.2d 909, 453 N.E.2d 520

Sylvia BOTWINICK et al., Respondents, v. Herbert S. OGDEN et al., Appellants, et al., Defendants.

Court of Appeals of New York.

June 16, 1983.

[59 N.Y.2d 910] [453 N.E.2d 521] Marshal S. Endick and Stuart E. Kahan, New York City, for appellants.

Emilio Nunez, Harry H. Lipsig and Pamela Anagnos Liapakis, New York City, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 87 A.D.2d 293, 451 N.Y.S.2d 141, 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 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ^*, 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.

COOKE, C.J., and JASEN, JONES, WACHTLER, MEYER and SIMONS, JJ., 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 N.Y.2d 421, 353 N.Y.S.2d 955, 309 N.E.2d 420, and Golini v. Nachtigall, 38 N.Y.2d 745, 381 N.Y.S.2d 45, 343 N.E.2d 762, antedated our decision in O'Rourke and were made without reference to the procedural rule of primary jurisdiction announced in O'Rourke.