New York State Court of Claims

New York State Court of Claims

MALKUSH v. THE STATE OF NEW YORK, #2002-016-050, Claim No. 99888, Motion Nos. M-64285, CM-64739


Synopsis



Case Information

UID:
2002-016-050
Claimant(s):
CHRISTOPHER M. MALKUSH
Claimant short name:
MALKUSH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99888
Motion number(s):
M-64285
Cross-motion number(s):
CM-64739
Judge:
Alan C. Marin
Claimant's attorney:
Tartamella, Tartamella & Fresolone, Esqs.By: Michael Tartamella, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 12, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion to dismiss the claim of Christopher Malkush on the grounds that it is barred by the Workers' Compensation Law. Claimant has cross-moved to amend the claim to add an allegation that the injuries allegedly suffered by Malkush are not covered under the Workers' Compensation Law. This claim arises out of a February 1, 1998 incident at Wildwood State Park in Suffolk County. Malkush alleges that his hand and fingers were crushed by a log splitter while he was performing community service at the park pursuant to an adjournment in contemplation of dismissal. Such arrangement required him to perform a specified number of hours of volunteer work.

The Workers' Compensation Law generally covers volunteer work: "[i]t is . . . the policy of the State that the protection of workmen's compensation coverage be provided to all volunteer workers donating their services to the State." 9 NYCRR §141.0. See also §2.9(h) of the Workers' Compensation Law which specifically includes adjournments in contemplation of dismissal under Criminal Procedure Law §170.55 in the definition of "wages."

Claimant, who has apparently not applied for workers' compensation benefits, argues that he is not a volunteer "in the pure sense of the [word]" because his community service was "compulsory."

In any event, the Second Department has ruled that "[it] is well settled that ‘primary jurisdiction with respect to determination as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board . . .' " and that whether the plaintiff, a hospital volunteer, was entitled to workers' compensation benefits, was an issue for the determination of the Board – not the Court. Hofrichter v North Shore University Hospital at Syosset, 271 AD2d 649, 650, 707 NYS2d 639, 640 (2d Dept 2000) (citations omitted).

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that motion no. M-64285 be granted and claim no. 99888 be dismissed without prejudice and IT IS FURTHER ORDERED that cross-motion no. CM-64739 be denied without prejudice.[2]



June 12, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A-C; claimant's cross-motion with affirmation in support; and defendant's reply affirmation.
  2. [2]The claim would be subject to reopening (and the motion to revival), upon a determination by the Workers' Compensation Board that Malkush's accident does not entitle him to coverage under the Workers' Compensation Law.