Opinion
1532
September 12, 2002.
RICHARD MANDEL, for plaintiff-respondent.
STEVE S. EFRON, for defendant-appellant.
Before: Tom, J.P., Mazzarelli, Rosenberger, Ellerin, Rubin, JJ.
Order, Supreme Court, Bronx County (George Friedman, J.), entered on or about November 19, 2001, which denied defendant Regency East Apartments Corp.'s motion for summary judgment dismissing the complaint and defendant Atlas Welding Boiler Repair's cross claim, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.
Having accepted workers' compensation benefits from defendant Regency East Apartments Corp., plaintiff is precluded from maintaining an action on the ground that he was actually employed by the building's managing agent (see Zabava v. 178 E. 78, 212 A.D.2d 406). Contrary to plaintiff's contention that the Workers' Compensation Board never made a definitive determination as to his employer's identity, a finding that defendant was plaintiff's employer at the time of the accident is implicit in the determination authorizing the payment of benefits (see Workers' Compensation Law § 2, § 3 and § 10). "The existence of an employer-employee relationship in which an industrial accident has occurred is jurisdictionally vital to the maintenance of a workmen's compensation proceeding" and a decision of the Workers' Compensation Board "is final on all questions within its jurisdiction" (O'Rourke v. Long, 41 N.Y.2d 219, 227; see also Velasquez v. Pine Grove Resort Ranch, 61 A.D.2d 1102, 1103, appeal dismissed 44 N.Y.2d 949 ["Since awards were made. . ., it necessarily follows that the Workmen's Compensation Board determined that an employer-employee relationship obtained"].
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.