Opinion
May 9, 1988
Appeal from the Supreme Court, Suffolk County (McCarthy, J.).
Ordered that the order is modified by (1) deleting the provision thereof which denied that branch of the appellant's motion which was to dismiss the complaint based on the Workers' Compensation Law and substituting therefor a provision deferring disposition of that branch of the motion until final resolution of a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law, and (2) adding a provision thereto granting the appellant's motion to the extent of granting partial summary judgment dismissing the complaint with respect to any acts of negligence alleged to have occurred prior to July 31, 1982; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.
The appellant interposed the defense that the action was barred by the Workers' Compensation Law. Although the hospital maintained a workers' compensation policy, there is no indication that an application for benefits under the statute was ever made. The Workers' Compensation Board has primary jurisdiction with respect to determinations of the applicability of the statute. Therefore, it is inappropriate for the courts to express any views as to the merits pending determination by the Board (see, Botwinick v Ogden, 59 N.Y.2d 909; O'Rourke v Long, 41 N.Y.2d 219). Consequently, the matter is remitted to the Supreme Court and disposition of that branch of the motion is held in abeyance until the Workers' Compensation Board renders a final determination (see, Peckham v Peckham Materials Corp., 102 A.D.2d 884).
We agree with the determination of the Supreme Court that the facts presented here do not warrant dismissal of the action on the ground that there was no doctor-patient relationship. The mere fact that the appellant required annual examinations of its employees does not preclude a cause of action against the hospital where the hospital doctors who conducted the examination failed to properly diagnose the malignant condition of the plaintiff's decedent and to act thereon, thereby allowing the cancer to spread and eventually cause the decedent's death. On these facts, the hospital failed to establish that the deceased, an employee, would not have accepted the services provided with the expectation that proper professional skill would be employed and that she would not have relied on the examination reports for treatment (cf., LoDico v Caputi, 129 A.D.2d 361; Twitchell v MacKay, 78 A.D.2d 125).
The court erred in denying that branch of the hospital's motion which was for partial summary judgment dismissing that part of the complaint which was premised upon acts or omissions occurring prior to July 31, 1982. Any claims of alleged malpractice with respect to the acts or omissions of the hospital prior to July 31, 1982, are time barred (see, CPLR 214-a). The continuous treatment doctrine does not apply to toll the Statute of Limitations under the facts of this case where the appellant rendered intermittent rather than continuous medical services (see, Davis v City of New York, 38 N.Y.2d 257). Weinstein, J.P., Eiber, Sullivan and Balletta, JJ., concur.