Opinion
March 9, 1998
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, with a direction to defer disposition of the motions until final resolution of a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law.
The plaintiff, a volunteer teacher's aide in the Town of Hempstead Day Care Center, was injured when she slipped and fell, allegedly as a result of some water on the floor of the Center. The defendants moved to dismiss the complaint on the ground that the plaintiff was a "special employee" and that her exclusive remedy was Workers' Compensation. The Supreme Court agreed and dismissed the complaint. We now reverse.
A review of the record reveals that the plaintiff has never made a claim for Workers' Compensation Benefits for injuries arising from this accident ( cf., Thompson v. Grumman Aerospace Corp., 166 A.D.2d 578, and 78 N.Y.2d 553). 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 and that it 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; O'Rourke v. Long, 41 N.Y.2d 219; see also, Becker v. Clarkstown Cent. School Dist., 157 A.D.2d 641).
Accordingly, the court should not have entertained the defendants' motion for summary judgment at this juncture, and the case should have been referred to the Workers' Compensation Board for a factual determination as to whether the plaintiff has a valid claim for damages or whether she is relegated to benefits under the Workers' Compensation Law ( see, Smalls v. Kaufmann, 112 A.D.2d 986; Gyory v. Radgowski, 89 A.D.2d 867).
Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.