Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered January 7, 2009, deemed from a judgment of the same court entered March 30, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 7, 2009 order granting plaintiffs' motion for summary judgment and denying defendant's motion to dismiss the complaint, awarded plaintiffs the principal sum of $11,460.46.

ORDERED that the judgment is reversed without costs, the order granting plaintiffs' motion for summary judgment and denying defendant's motion to dismiss the
complaint is vacated, and the matter 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 plaintiffs fail 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 deny plaintiffs' motion and grant defendant's motion to dismiss the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Thereafter, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (2), based upon the assignor's alleged eligibility for workers' compensation benefits. The Civil Court denied defendant's motion to dismiss and granted plaintiffs' motion for summary judgment. This appeal by defendant ensued. A judgment was subsequently entered, [*2]from which the appeal is deemed to be taken (see CPLR 5501 [c]).

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]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; 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 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, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiffs' assignor was acting as an employee at the time of the accident, and that therefore workers' compensation benefits might be 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 Dunn v American Tr. Ins. Co., 71 AD3d 629; 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]).

Accordingly, prior to rendering a determination on the motions, the Civil Court should have held the matter 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 Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752).

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 01, 2010