(dissenting). On October 22, 1981, defendant Kenneth Fuld, president of Major Watch Case Company (Major), was driving a car owned by the defendants, Trans Auto Systems, Inc., and Holiday Auto Lease Ltd. (Holiday), which had been leased to Major. With Fuld in the car was the plaintiff, Bernice Liss, an employee of Major, whom Fuld had picked up at her residence and was driving to work. While en route to work, Fuld apparently lost control of the automobile and struck a train pillar, and the plaintiff suffered a broken hip among other injuries.
This action was brought in March 1982. In their answers, the defendants asserted the affirmative defense of workers’ compensation coverage. Thereafter, the. defendants’ liability carrier refused to pay no-fault benefits on the ground that the accident had arisen in the course of the plaintiff’s employment. After a preliminary workers’ compensation hearing was held on May 4, 1982, plaintiff filed a workers’ compensation claim at the direction of the hearing judge. In September 1982, a hearing on the *436issue was held. At that hearing the plaintiff, represented by the attorney in this action, and the defendant Fuld, represented by an attorney for Major’s compensation carrier, both testified. Also present was an attorney from Eveready Insurance Company, the no-fault and liability carrier for defendants, who was allowed to observe the proceedings but not to participate therein.
The plaintiff testified that she was employed by Major for 35 years and that for approximately the past 20 of those years, she had been transported to work by Fuld 80 to 85% of the time. She stated that she still gets a lift to work from Fuld almost every day.
On cross-examination, she testified that she had no contract for anybody to take her to work, that she was carrying no work papers with her at the time of the accident and that Fuld would leave his residence and pick her up at her home on the way to work.
Fuld related that he was the president of Major and had been with that company for approximately 20 years. Approximately 18 years ago, he began to give the plaintiff a ride to work for the convenience of the company, that he drove her on a daily basis 98 to 99% of the time.
On September 17, 1982, the hearing judge, in a written decision, determined that the accident had not arisen out of and in the course of the employment. Accordingly, he closed the case.
In July of 1983, Fuld moved for summary judgment on the theory that the testimony adduced at the workers’ compensation hearing and the examination before trial had demonstrated, as a matter of law, that the accident had occurred during the course of the plaintiff’s employment. The motion was joined in by defendants Trans Auto and Holiday.
The plaintiffs cross-moved for an order striking the affirmative defense of workers’ compensation. They argued that the decision of the workers’ compensation law judge, which found that the accident was not work related, collaterally estopped the defendants from relitigating the issue.
Special Term denied both the motion and cross motion holding that the defendants, not being parties to the workers’ compensation case, were not estopped from litigating the issue as to whether or not the accident occurred in the course of the plaintiff’s employment, but that the employment question raised factual issues which required a full hearing and hence was not appropriate for summary judgment. No party to the action appealed this order.
*437Eight months later, the plaintiff moved to vacate the prior order on the ground “that the court was without subject matter jurisdiction to render that prior order” and for an order striking the affirmative defense or, alternatively, for an order, pursuant to CPLR 2221, granting leave to renew, the plaintiff’s motion to strike such defense on the ground that the Workers’ Compensation Board had exclusive jurisdiction.
Special Term noted that the motion was nothing more than a motion to reargue and therefore untimely made. However, it sua sponte, in the interest of justice, recalled its prior decision, and dismissed the affirmative defense of workers’ compensation on the stated ground that such defense would be relevant only if plaintiff were suing her employer, Major, and that since defendant Fuld was merely a fellow employee, the defense would not lie.
Plaintiffs concede that Special Term was in error in reaching this conclusion. Thus, where an employee is injured by a fellow employee in the course of their employment through the negligent use of a motor vehicle owned by another whose liability is derivative, workers’ compensation is the exclusive remedy for the injured employee and the defense of workers’ compensation is available to the owner of the vehicle (see, Naso v Lafata, 4 NY2d 585; Rauch v Jones, 4 NY2d 592).
The plaintiffs originally moved to dismiss the affirmative defense on the ground that the determination of the Workers’ Compensation Board that the accident had not arisen in the course of employment was binding on the court in the absence of an appeal from such determination. On appeal, they assert their motion was one not to reargue the prior order, but one to vacate an order which the court did not have jurisdiction to render since the Workers’ Compensation Board had primary and exclusive jurisdiction to determine whether the defense was applicable. This is merely a restatement of plaintiffs’ original contention. It is an attempt to avoid the consequences of moving untimely for reargument. Thus, Special Term correctly held that the motion was one to reargue and as such was too late. It erred in not denying the motion outright because of the expiration of the time within which an appeal from the original order could be taken (Matter of Huie [Furman], 20 NY2d 568; Henegar v Freudenheim, 40 AD2d 825).
Even assuming that the court properly could consider the motion as one to vacate its prior order, Special Term was correct in its initial determination that defendants could not be collaterally estopped from contesting the Board’s determination. In the *438instant matter, defendants, the owners of the vehicle, and plaintiff’s coemployee were not afforded an opportunity to be represented and heard. Eveready, the liability insurance carrier, had a representative at the hearing ready and willing to participate. He was prevented from so doing by the ruling of the board judge that the liability carrier had no standing. Thus, the only parties who participated were the plaintiff claimant, who was represented and questioned by her attorney in the third-party liability suit, and the employer by a representative of the workers’ compensation carrier.
Defendant Fuld was a witness at the proceeding, not a party. Plaintiff and the workers’ compensation carrier had the same interest at the hearing. The plaintiff wished to avoid the applicability of workers’ compensation so as not to prejudice this third-party action, and the compensation carrier likewise was only interested in avoiding payment of compensation benefits. Thus, plaintiff was asked questions by her counsel and then examined in a cursory fashion by the attorney for the compensation carrier. After Mr. Fuld was questioned by plaintiff’s counsel, the attorney for the compensation carrier declined to question him. Clearly, the defendants herein were not accorded a “full” and “fair” opportunity to contest the issue of whether the accident occurred in the course of plaintiff’s employment (see, Schwartz v Public Administrator of County of Bronx, 24 NY2d 65).
This court, in a similar situation in which the proceedings were nonadversarial and the only persons who “wanted the claims allowed * * * were not permitted to advance their contentions at the hearing” held that the Board’s determination was therefore not binding on a defendant employer (Pigott v Field, 13 AD2d 350, 354).
It must also be emphasized that defendants had no standing to seek judicial review of the Board’s determination.
Finally, although the majority asserts that the “Court of Appeals decision in O’Rourke v Long (41 NY2d 219) * * * posits exclusive jurisdiction in the Workers’ Compensation Board” and predicates their affirmance “upon the jurisdictional directive of the O’Rourke case”, the Court of Appeals noted in that case that “the board’s determination with respect to this same factual question [as to whether an accident was within the scope of plaintiff’s employment] would be binding on the court provided that an opportunity is afforded to the employer to be heard” (O’Rourke v Long, supra, at p 228, quoting McMillan v Notre Dame Residence Club, 33 Misc 2d 948, 950-951; emphasis in *439original). Since there was no “opportunity * * * afforded to the employer to be heard” in this case the determination of the Board was not binding upon defendants.
Kupferman, J. P., and Kassal, J., concur with Ellerin, J.; Sullivan and Asch, JJ., dissent in an opinion by Asch, J.
Order, Supreme Court, New York County, entered on October 19, 1984, affirmed, without costs and without disbursements.