Nunes v. Window Network LLC
| Decision Date | 16 September 2008 |
| Docket Number | No. 2007-06753,2007-06753 |
| Citation | 863 N.Y.S.2d 815,2008 NY Slip Op 6973,54 A.D.3d 834 |
| Parties | MIQUEIAS NUNES, Appellant, v. WINDOW NETWORK, LLC, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of the motion after final resolution of a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law.
"[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board" (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Where the availability of workers' compensation benefits hinges upon questions of fact or upon mixed questions of fact and law, the parties may not choose the courts as the forum for resolution of the questions, but must look to the Workers' Compensation Board for such determinations (see O'Rourke v Long, 41 NY2d 219 [1976]).
The question of whether a particular person is an employee within the meaning of the Workers' Compensation Law is usually a question of fact to be resolved by the Workers' Compensation Board (see Santigate v Linsalata, 304 AD2d 639 [2003]). In this case, although the plaintiff identified himself at his deposition as an employee of the defendant, the deposition testimony of a principal of the defendant tended to negate such a finding. Thus, it would be inappropriate to determine that the plaintiff's self-described status as an employee of the defendant is binding upon him, especially since he does not speak English. Under these circumstances, contrary to the Supreme Court's determination, there is a question of fact as to whether the plaintiff has a valid negligence cause of action against the defendant, or if he is relegated to benefits...
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Timperio v. Bronx-Lebanon Hosp.
...to decide in the first instance (see O'Rourke v. Long, 41 N.Y.2d at 228, 391 N.Y.S.2d 553, 359 N.E.2d 1347 ; Nunes v. Window Network, LLC, 54 A.D.3d 834, 835, 863 N.Y.S.2d 815 [2008] ; Melo v. Jewish Bd. of Family & Children's Servs., Inc., 282 A.D.2d 440, 441, 722 N.Y.S.2d 419 [2001] ; Cor......
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Timperio v. Bronx-Lebanon Hosp.
... ... O'Rourke v Long, 41 N.Y.2d at 228; Nunes v ... Window Network, LLC, 54 A.D.3d 834, 835 [2008]; Melo ... v Jewish Bd. of Family & ... ...
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Aprile-Sci v. St. Raymond of Penyafort R.C. Church
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