Rodriguez v. South Bronx Development Organization

179 A.D.2d 545

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1992
• Status: Published

Opinion

In March, 1986, plaintiff was injured while an employee of the New York City Human Resources Administration (“HRA”) who had been “loaned” out as a job developer to defendant South Bronx Development Organization (“SBDO”). Immediately, after his injury, plaintiff filed a claim for Workers’ Compensation benefits. Plaintiff informed the Board that HRA was his sole employer and accordingly he was awarded benefits as an employee of HRA. Thereafter, in March 1989, plaintiff sued SBDO for negligence. SBDO denied any negligence and asserted, as an affirmative defense, that Workers’ Compensation benefits were plaintiff’s sole remedy. Accordingly, SBDO moved for a stay of the action on the grounds that the Board had primary jurisdiction to determine plaintiff’s status.

Inasmuch as there were factual questions as to whether plaintiff was SBDO’s "special employee”, the issue of plaintiff’s status should be deferred to the expertise of the Workers’ Compensation Board. (See, O’Rourke v Long, 41 NY2d 219, 224.)

Any alleged delay by defendant in moving for the instant stay did not constitute operative prejudice to plaintiff so as to warrant a denial of the stay. (Cf., Shine v Duncan Petroleum Transp., 60 NY2d 22, 27.) Concur — Sullivan, J. P., Carro, Kassal and Smith, JJ.