March 2, 2010

Dunn v American Tr. Ins. Co. (2010 NY Slip Op 01757)

https://www.beynensonlaw.com/case-law/dunn-v-american-tr-ins-co-2010-ny-slip-op-01757/

Court
Appellate Division, Second Department
Decided
March 2, 2010
Citation
2010 NY Slip Op 01757 · 71 AD3d 629
Posture
Motion to dismiss (CPLR 3211)
Later treatment
Followed in 7 later decisions (see Cited by)
Issues
Priority, other coverage
Legal questions
Workers' comp or other insurer primary (see the maps)
Cite as
Dunn v American Tr. Ins. Co., 71 AD3d 629 (2d Dept 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The Workers' Compensation Board has primary jurisdiction to resolve disputed employment status bearing on entitlement to workers' compensation benefits. The claimant sought first-party no-fault benefits, asserting independent-contractor status, while the insurer claimed that the claimant was an employee of a car service dispatch base. The insurer moved under CPLR 3211 (a) (2) to dismiss for lack of subject-matter jurisdiction or, alternatively, for summary judgment. The Appellate Division, Second Department, reversed denial of the motion because the factual employment questions should first have been referred to the Board for determination under the Workers' Compensation Law. It remitted for a new determination of the motion following the claimant's prompt application to the Board, leaving entitlement to benefits unresolved.

Reported in New York Official Reports at Dunn v American Tr. Ins. Co. (2010 NY Slip Op 01757)

Dunn v American Tr. Ins. Co.
2010 NY Slip Op 01757 [71 AD3d 629]
March 2, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 28, 2010
Joseph F. Dunn, Respondent,
v
American Transit Insurance Co., Appellant.

—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Robert B. Taylor, New Rochelle, N.Y., for respondent.

In an action to recover first-party no-fault benefits pursuant to a policy of insurance, the defendant appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated February 27, 2009, which denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (2) for lack of subject matter jurisdiction or, in the alternative, for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new determination of the motion following a prompt application by the plaintiff to the Workers’ Compensation Board to determine his 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]; see O’Rourke v Long, 41 NY2d 219 [1976]; Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d 517 [2007]). In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 269 [1991]). Resolution of these questions “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (id. at 269). Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law (see Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d at 518-519; Arvatz v Empire Mut. Ins. Co., 171 AD2d at 269). Covello, J.P., Miller, Dickerson and Belen, JJ., concur.

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