December 13, 2019

Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 52053(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-american-tr-ins-co-2019-ny-slip-op-52053u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52053(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Priority, other coverage Discovery and procedure
Legal questions: Workers' comp or other insurer primary (see the maps)

Cite as

Compas Med., P.C. v American Tr. Ins. Co., 2019 NY Slip Op 52053(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's complaint was dismissed because it failed to show compliance with an order requiring a Workers' Compensation Board application. The prior order held the insurer's summary judgment cross motion in abeyance for 90 days and conditioned dismissal on failure to file proof of an application. The provider did not demonstrate a proper application to determine the parties' rights under the Workers' Compensation Law. Its argument that the two-year limit in Workers' Compensation Law § 28 made a compensation claim untimely was unavailing, particularly because the insurer's employment-related denial was concededly timely. The Appellate Term, Second Department, affirmed summary judgment for the insurer and denial of the provider's cross motion.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 52053(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Compas Medical, P.C., as Assignee of Florvel, Joseph, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered May 1, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff’s assignor had been injured during the course of employment. By order entered June 10, 2014, the Civil Court granted defendant’s cross motion to the extent of holding the matter in abeyance for 90 days pending the filing of an application to the Workers’ Compensation Board (Board). The court further stated that if plaintiff failed to file proof of such application with the court, defendant’s cross motion for summary judgment dismissing the complaint would be granted.

Defendant subsequently moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to comply with the Civil Court’s prior order in that plaintiff had not filed an application with the Board. Plaintiff cross-moved for summary judgment. By order entered May 1, 2018, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Since plaintiff did not demonstrate that it had complied with the Civil Court’s June 10, 2014 order requiring plaintiff to make a proper application to the Board to determine the parties’ rights under the Workers’ Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]), the order entered May 1, 2018 is affirmed.

To the extent that plaintiff argues that it believes that Workers’ Compensation Law § 28 [*2]renders any claim for workers’ compensation benefits untimely in this case—because plaintiff’s assignor did not make an application for benefits within two years of the date of the accident—such argument is unavailing, particularly where, as here, defendant demonstrated, and plaintiff did not deny, that defendant had timely denied plaintiff’s claim on the ground that plaintiff’s assignor was injured during the course of his employment (see New Millennium Radiology, P.C. v American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Workers' comp or other insurer primary

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Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?

This decision: Workers' compensation is primary and the claim against the no-fault insurer is dismissed or denied

Held the complaint properly dismissed because the provider failed to comply with the prior abeyance order requiring a proper application to the Board, rejecting the argument that a Board claim would be time-barred where the insurer timely denied on that ground.

Referred to WC BoardWC primary: claim failsWC defense not shownWC defense precludedFirst insurer must payNo coverage, not priorityThis decisionCites it or cited by itCited or followed

Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 10 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

LMK Psychological Serv., P.C. v American Tr. Ins. Co. (2009 NY Slip Op 06004) FollowedThe Workers' Compensation Board has primary jurisdiction to determine factual issues concerning workers' compensation coverage.
New Millennium Radiology, P.C. v American Tr. Ins. Co. (2018 NY Slip Op 50940(U)) FollowedThe insurer's evidence raised an employment-related coverage issue requiring an initial Workers' Compensation Board determination.

Similar decisions

Compas Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 50953(U))The insurer's submissions established a presumption that its IME nonappearance denials were timely and properly mailed.
Compas Med., P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50773(U))The insurer's motion for summary judgment based on full payment under the workers' compensation fee schedule was granted.
AR Med. Rehabilitation, P.C. v American Tr. Ins. Co. (2010 NY Slip Op 50708(U))The insurer's evidence required the Workers' Compensation Board to resolve the assignor's alleged eligibility for workers' compensation benefits.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50419(U))The Workers' Compensation Board must first resolve eligibility when evidence raises an issue whether the assignor was injured in the course of employment.
Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50105(U))The provider's database search did not justify renewal or excuse noncompliance with an order requiring Workers' Compensation Board review.