Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered March 12, 2009. The order, insofar as appealed from, denied without prejudice defendant's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed without costs, the provision denying without prejudice defendant's motion for summary judgment is stricken and defendant's motion for summary judgment is remitted to the Civil Court to be held in abeyance pending a prompt application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. In the event plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant's motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits. Plaintiff opposed the motion and cross-moved for summary judgment. The Civil Court denied without prejudice both the motion and cross motion. Defendant appeals from so much of the order as denied without prejudice its motion for summary judgment.

The Workers' Compensation Board (Board) has primary jurisdiction to determine factual issues concerning coverage under the Workers' Compensation Law (see Botwinick v Ogden, 59 NY2d 909 [1983]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]; Santigate v Linsalata, 304 AD2d 639 [2003]). Where a plaintiff fails to litigate the issue of the availability of workers' compensation coverage before the Board, "the court should not [*2]express an opinion as to the availability of compensation but remit the matter to the Board" (Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; see also O'Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2008]).

In the instant case, contrary to plaintiff's contention, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that plaintiff's assignor was acting as an employee at the time of the accident and that therefore workers' compensation benefits were available (see e.g. Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; see also A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Board (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Defendant's motion should not have been denied without prejudice but, rather, should have been held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties' rights under the Workers' Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752). Accordingly, we reverse the order, insofar as appealed from.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: April 13, 2010