Healey v. All-Inn Trucking, Inc.

205 A.D.2d 359, 613 N.Y.S.2d 593

Opinion

Order, Supreme Court, New York County (Joan Lobis, J.), entered June 1, 1993, which granted plaintiff’s motion to dismiss defendant-appellant’s affirmative defense of workers’ compensation, unanimously affirmed, with costs.

As the IAS Court held, where the Workers’ Compensation Board finds injuries to be outside the purview of the Workers’ Compensation Law, an employer who participated in the hearing before the Board cannot assert the affirmative defense of compensation coverage in an ensuing civil action (Liss v Trans Auto Sys., 68 NY2d 15, 21). Appellant’s proper venue of redress is an administrative appeal of the Board’s decision, not this civil action (cf., Werner v State of New York, 53 NY2d 346, 352, n 2). Concur—Carro, J. P., Rosenberger, Kupferman, Nardelli and Tom, JJ.