Davis v. Erie Cnty. Dep't of Soc. Servs.
| Decision Date | 20 November 2015 |
| Citation | 20 N.Y.S.3d 816,133 A.D.3d 1373 |
| Parties | Verley DAVIS, Jr., Plaintiff–Respondent, v. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant–Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
133 A.D.3d 1373
20 N.Y.S.3d 816
Verley DAVIS, Jr., Plaintiff–Respondent,
v.
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant–Appellant, et al., Defendant.
Supreme Court, Appellate Division, Fourth Department, New York.
Nov. 20, 2015.
Michael A. Siragusa, County Attorney, Buffalo (Jeremy C. Toth of Counsel), for Defendant–Appellant.
Muscato & Shatkin, LLP, Buffalo (Marc Shatkin of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
MEMORANDUM:
In an action seeking damages for injuries that plaintiff allegedly sustained while participating in the " Enrollment in Work Experience" program, Erie County Department of Social Services (defendant) appeals from an order denying its motion to dismiss the complaint against it on the ground that workers' compensation benefits are plaintiff's exclusive remedy. We conclude that Supreme Court erred in entertaining the motion. It is well settled that "primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board [ (Board) ] ... [I]t is therefore inappropriate for the courts to express views with respect thereto pending determination by" the Board (Botwinick v. Ogden, 59 N.Y.2d 909, 911, 466 N.Y.S.2d 291, 453 N.E.2d 520 ). "Where, as here, there is an issue of fact whether an injured plaintiff is an employee within the meaning of the Workers' Compensation Law, he or she ‘may not choose the courts as the forum for the resolution’ of that issue" (McGee v. Van Erden, 66 A.D.3d 1426, 1427, 885 N.Y.S.2d 864, quoting O'Rourke v. Long, 41 N.Y.2d 219, 228, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ). Thus, the court "should not have entertained [defendant's] motion at this juncture, and the case should have been referred to the Board for a determination" whether plaintiff has a valid cause of action for damages or whether he is limited to benefits under...
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Brown v. Hall
...520 ; see O'Rourke v. Long, 41 N.Y.2d 219, 227–228, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; Davis v. Erie County Dept. of Social Servs., 133 A.D.3d 1373, 1374, 20 N.Y.S.3d 816 ). Here, whether plaintiff was injured within the scope of her employment and whether the individual defendants acted w......
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