May 18, 2018

Sama Physical Therapy, P.C. v Hereford Ins. Co. (2018 NY Slip Op 50737(U))

https://www.beynensonlaw.com/case-law/sama-physical-therapy-p-c-v-hereford-ins-co-2018-ny-slip-op50737u/

Court: Appellate Term, Second Department
Decided: May 18, 2018
Citation: 2018 NY Slip Op 50737(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Priority, other coverage Discovery and procedure
Legal questions: Workers' comp or other insurer primary (see the maps)

Cite as

Sama Physical Therapy, P.C. v Hereford Ins. Co., 2018 NY Slip Op 50737(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 failed to show compliance with an order requiring an application to the Workers' Compensation Board within 90 days. The insurer sought dismissal on the ground that the assignor was injured during employment. The Civil Court held the action in abeyance and conditionally granted the insurer's cross motion if the provider failed to file proof of an application. On renewal, the insurer noted that the provider instead submitted an authorization to disclose records more than 100 days after the order. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering to the conditional ruling because the provider had not demonstrated a proper application under the Workers' Compensation Law.

Reported in New York Official Reports at Sama Physical Therapy, P.C. v Hereford Ins. Co. (2018 NY Slip Op 50737(U))

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

Sama Physical Therapy, P.C., as Assignee of Ouro-Agrigna, Tcha, Appellant,
against
Hereford Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Rubin & Nazarian (Thomas Wolf of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), dated July 27, 2015. The order, insofar as appealed from, upon, in effect, renewal, adhered to a prior determination in an order of that court entered December 11, 2014 which, among other things, conditionally granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order dated July 27, 2015, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, arguing that plaintiff’s assignor had been injured during the course of employment. By order entered December 11, 2014, the Civil Court granted defendant’s cross motion to the extent of holding the case 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 shall be granted.

Plaintiff subsequently moved for leave to renew and, upon renewal, for summary judgment and to deny defendant’s cross motion for summary judgment dismissing the complaint. Defendant opposed plaintiff’s motion, noting that plaintiff had failed to comply with the Civil [*2]Court’s prior order in that plaintiff did not file an application to the Board and that, while plaintiff had submitted a form to the Board entitled “Claimant’s Authorization to Disclose Workers’ Compensation Records,” not only did this submission fail to comply with the Civil Court’s order, it was also made over 100 days after the Civil Court’s order. By order dated July 27, 2015, the Civil Court, upon, in effect, renewal, adhered to its prior determination.

Since plaintiff did not demonstrate that it had complied with the Civil Court’s order and made a proper application 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 dated July 27, 2015, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018

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

Open the full map

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 under the conditional abeyance order because the provider never made a proper Board application, its late records-authorization form not complying with the order.

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.

Similar decisions

Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U))The insurer's proof supported a presumption that the IME scheduling letters and denial forms had been properly mailed.
Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 52053(U))The provider's complaint was dismissed because it failed to show compliance with an order requiring a Workers' Compensation Board application.
SAMA Physical Therapy, P.C. v Tri State Consumers Ins. Co. (2018 NY Slip Op 51635(U))The insurer established proper mailing of IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. The provider challenged both showings on appeal from an order denying its summary judgment motion and granting the insurer's cross motion dismissing its assigned no-fault benefits complaint.
Sama Physical Therapy, P.C. v Global Liberty Ins. (2017 NY Slip Op 51736(U))The insurer failed to prove timely IME notices, and the provider failed to establish entitlement to judgment on its claims.
Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51751(U))The insurer failed to establish timely EUO scheduling for the first two claims but timely denied the third claim for nonappearance.