Bradley v. St. Charles Hosp.
| Decision Date | 09 May 1988 |
| Citation | 140 A.D.2d 403,528 N.Y.S.2d 106 |
| Parties | Joseph P. BRADLEY, etc., Respondent, v. ST. CHARLES HOSPITAL, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., of counsel), for appellant.
Ginsberg & Broome, New York City (Michael W. Rosen, of counsel), for respondent.
Before WEINSTEIN, J.P., and EIBER, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, etc., the defendant St. Charles Hospital appeals from an order of the Supreme Court, Suffolk County (McCarthy, J.), entered March 2, 1987, which denied its motion for summary judgment.
ORDERED that the order is modified by (1) deleting the provision thereof which denied that branch of the appellant's motion which was to dismiss the complaint based on the Workers' Compensation Law and substituting therefor a provision deferring disposition of that branch of the motion until final resolution of a prompt application to the Worker's Compensation Board to determine the parties' rights under the Workers' Compensation Law, and (2) adding a provision thereto granting the appellant's motion to the extent of granting partial summary judgment dismissing the complaint with respect to any acts of negligence alleged to have occurred prior to July 31, 1982; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.
The appellant interposed the defense that the action was barred by the Workers' Compensation Law. Although the hospital maintained a Workers' Compensation policy, there is no indication that an application for benefits under the statute was ever made. The Workers' Compensation Board has primary jurisdiction with respect to determinations of the applicability of the statute. Therefore, it is inappropriate for the courts to express any views as to the merits pending determination by the board ( see, Botwinick v. Ogden, 59 N.Y.2d 909, 466 N.Y.S.2d 291, 453 N.E.2d 520; O'Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347). Consequently, the matter is remitted to the Supreme Court and disposition of that branch of the motion is held in abeyance until the Workers' Compensation Board renders a final determination ( see, Peckham v. Peckham Materials Corp., 102 A.D.2d 884, 477 N.Y.S.2d 58).
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