September 15, 2017

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51192(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-american-tr-ins-co-2017-ny-slip-op-51192u/

Court: Appellate Term, Second Department
Decided: September 15, 2017
Citation: 2017 NY Slip Op 51192(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Priority, other coverage
Legal questions: Workers' comp or other insurer primary (see the maps)

Cite as

Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51192(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 insurer's evidence raised an issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board. The evidence supported a question whether the assignor was acting as an employee at the time of the accident and workers' compensation benefits might be available. Under O'Rourke v Long, that issue belonged first before the Board. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment on the first, second, fourth and fifth causes of action. It also affirmed conditional dismissal of those causes unless the provider filed proof within 90 days showing that the underlying claims had been filed with the Board, which in effect granted the insurer's cross motion only to that extent.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51192(U))

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

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

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 3, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth and fifth causes of action, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of plaintiff’s motion seeking summary judgment on the first, second, fourth and fifth causes of action, and, in effect, granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits, to the extent of providing that if plaintiff failed to file proof, within 90 days, showing that it had filed the claims underlying those causes of action with the Workers’ Compensation Board, those causes of action shall be dismissed.

Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that, therefore, workers’ compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), which issue must be resolved [*2]in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Arce Med. & Diagnostic Svce, 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U]; Jamaica Med. Supply, Inc., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017

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 may apply: the Board decides first and the no-fault claim waits

Held the insurer's proof raised an issue whether the assignor was acting as an employee, so WC benefits might be available and the Board must decide first; affirmed the 90-day conditional-dismissal order pending a Board filing.

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, 33 (this one included) are in the same category.

Cited in this decision

Arce Med. & Diagnostic Svce v American Tr. Ins. Co. (2013 NY Slip Op 50531(U))The insurer obtained a stay because admissible evidence raised an issue whether the assignor was eligible for workers' compensation benefits.
Jamaica Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 52371(U))The insurer raised a triable workers' compensation eligibility issue requiring initial resolution by the Workers' Compensation Board.

Similar decisions

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.
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.
Quality Health Prod., Inc. v American Tr. Ins. Co. (2019 NY Slip Op 51950(U))The insurer established an employment-related coverage issue requiring an initial determination by the Workers' Compensation Board.
W.H.O. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50532(U))The insurer's evidence raised a workers' compensation eligibility issue requiring initial resolution by the Workers' Compensation Board.
Parkway Pain Mgt., PLLC v American Tr. Ins. Co. (2013 NY Slip Op 50521(U))The insurer's proof, including a police accident report, warranted a stay to resolve possible workers' compensation eligibility.