Opinion
1519
August 15, 2002.
Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered January 15, 2002, which denied defendants' motion for summary judgment, unanimously reversed, on the law, without costs, the order vacated and the matter remanded for further proceedings in accordance with this decision.
STEVEN WILDSTEIN for plaintiff-respondent.
HOWARD R. COHEN for defendants-appellants.
Andrias, J.P., Buckley, Rosenberger, Wallach, Gonzalez, JJ.
It is undisputed that, at the time of the attack on plaintiff, she was an employee of defendant hospital. In denying defendants' motion for summary judgment dismissing the complaint, the motion court found that this action is not barred by the Workers' Compensation Law because plaintiff was not in the course of her employment when she was attacked. However, the threshold question of whether plaintiff was in the course of her employment at the time of the attack is a matter that must in the first instance be determined by the Workers' Compensation Board. As stated in O'Rourke v. Long ( 41 N.Y.2d 219, 228): "[W]here the availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions" (see also, Liss v. Trans Auto Systems, 68 N.Y.2d 15, 20-21; Arvatz v. Empire Mutual Ins. Co., 171 A.D.2d 262, 267).
Whether plaintiff has a valid tort claim for damages or is relegated to Workers' Compensation benefits is a factual determination for the Workers' Compensation Board and such body may not be circumvented by resort to the courts nor can a plaintiff elect to waive Workers' Compensation benefits and proceed on a tort cause of action (Antoinetta Corp. v. State of New York, 257 A.D.2d 742, 743).
Finally, since resolution of the Workers' Compensation issue will be determinative of plaintiff's standing to pursue this action in tort, resolution of the other branch of defendants' motion must await such determination.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.