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QUIZHPI v. TJERNLUND PRODUCTS, INC.

309 A.D.2d 670 (2003)

766 N.Y.S.2d 342

SEGUNDO QUIZHPI, Respondent, v. TJERNLUND PRODUCTS, INC., et al., Defendants, and THE SEAFOOD PEDDLER OF NEW YORK, INC., et al., Appellants. (And a Third-Party Action.)

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 28, 2003.

Since defendants-appellants failed to establish as a matter of law that plaintiff was employed by either or both of them, and since the identity of the employer is subject to the primary jurisdiction of the Workers' Compensation Board, which had not yet made that determination (see Botwinick v Ogden, 59 N.Y.2d 909, 911 [1983]; White v Marriott Mgt. Servs., 283 A.D.2d 639

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