Opinion
2001
October 28, 2003.
Order, Supreme Court, Bronx County (Dianne Renwick, J.), entered August 26, 2002, which, to the extent appealed from, denied the motion of defendants The Seafood Peddler of New York, Inc. and Food and Beverage Associates for summary judgment dismissing the complaint, without prejudice to renewal following a determination by the Workers' Compensation Board as to whether plaintiff is relegated to the benefits of the Workers' Compensation Law, unanimously affirmed, without costs.
Sarah E. Sholes, for plaintiff-respondent.
Sung-Hee Koh, for defendants-appellants.
Before: Nardelli, J.P., Mazzarelli, Ellerin, Gonzalez, JJ.
Since defendants-appellants failed to establish as a matter of law that plaintiff was employed by either or both of them, and since the identity of the employer is subject to the primary jurisdiction of the Workers' Compensation Board, which had not yet made that determination (see Botwinick v. Ogden, 59 N.Y.2d 909, 911; White v. Marriott Mgt. Servs., 283 A.D.2d 639), dismissal would be premature (see O'Rourke v. Long, 41 N.Y.2d 219).
The motion was also properly denied in light of the fact that plaintiff alleges that defendants-appellants committed an intentional tort, which would bring plaintiff within an exception to the exclusivity of the Workers' Compensation remedy (see Acevedo v. Consolidated Edison Co., 189 A.D.2d 497, 500-501, lv dismissed, 82 N.Y.2d 748). A determination of whether that cause of action should be dismissed cannot be made until discovery is completed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.