January 20, 2017
Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50105(U))
https://www.beynensonlaw.com/case-law/flatbush-chiropractic-p-c-v-american-tr-ins-co-2017-ny-slip-op50105u/
- Decided
- January 20, 2017
- Citation
- 2017 NY Slip Op 50105(U)
- Posture
- Other motion
- Outcome
- Insurer prevailed
- Legal questions
- Workers' comp or other insurer primary (see the maps)
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.
Reported in New York Official Reports at Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50105(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
American Transit Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 6, 2015. The order granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross motion for leave to renew its prior motion for summary judgment, which had been denied by an order of the same court (Larry Love, J.) entered March 7, 2013.
ORDERED that the order entered May 6, 2015 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 cross-moved for a stay, arguing that there was a question as to whether plaintiff’s assignor had been injured during the course of his employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). In an order entered March 7, 2013, the Civil Court (Larry Love, J.) denied plaintiff’s motion and granted defendant’s cross motion, finding that, since there was an issue of fact as to whether the accident had occurred in the course of the assignor’s employment, Board resolution was required. The order further stated that should the matter not be filed with the Board “within 90 days of this order, the action may be dismissed, absent any good cause from the plaintiff.”
Approximately 21 months later, defendant moved to dismiss the complaint based upon plaintiff’s failure to comply with the Civil Court’s March 7, 2013 order, i.e., to demonstrate by June 7, 2013 (90 days from the date of the court’s order) that an application to the Board had been made. Plaintiff cross-moved for leave to renew its motion for summary judgment based on “new facts not offered on the prior motion that would change the prior determination (CPLR 2221 [e] [2]).” In support of renewal, plaintiff offered, among other things, an affidavit by a paralegal of plaintiff’s counsel’s firm, who had requested that a Board employee conduct a search of plaintiff’s assignor’s name in the Board’s database, which found no record of plaintiff’s assignor having made an application for workers’ compensation benefits. From this “new evidence,” plaintiff concluded that the matter was not subject to or covered by the Workers’ Compensation Law and that there was no Board jurisdiction. Plaintiff reasoned that since it had demonstrated in its prior motion that it was entitled to summary judgment, defendant was responsible for payment of plaintiff’s claims for assigned no-fault benefits.
In an order entered May 6, 2015, from which plaintiff appeals, the Civil Court (Terrence C. O’Connor, J.) granted defendant’s motion to dismiss the complaint and denied plaintiff’s cross [*2]motion for leave to renew its prior motion for summary judgment. We affirm.
A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]). We note that a claim for workers’ compensation benefits must be filed by the injured worker on a particular Board form within two years after the date of the accident (Workers’ Compensation Law § 28) and may not be assigned (Workers’ Compensation Law § 33). Plaintiff did not demonstrate that its assignor had made a proper application for workers’ compensation benefits (see A. B. Med. Servs., PLLC v American Tr. Ins. Co., 34 Misc 3d 141[A], 2012 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). Since it cannot be said that the alleged “new facts” offered by plaintiff would have changed the prior determination, and since plaintiff did not show good cause why the complaint should not be dismissed, the Civil Court properly denied plaintiff’s cross motion for leave to renew and granted defendant’s motion to dismiss the complaint.
Accordingly, the order is affirmed.
Elliot, J.P., Pesce and Solomon, JJ., concur.
Decision Date: January 20, 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.
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
Affirmed dismissal of the complaint because the provider never showed that its assignor made a proper Board application as the earlier 90-day order required; a database search showing no WC claim did not justify renewal.
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.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2012 NY Slip Op 50076(U)) FollowedThe providers' renewal submissions failed to show a proper workers' compensation application or its rejection by the Board.
Similar decisions
- 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.
- Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (2014 NY Slip Op 50340(U))The insurer raised a triable issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board.
- D.A.V. Chiropractic, P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51738(U))The Workers' Compensation Board has primary jurisdiction to resolve factual questions about workers' compensation coverage.
- 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.
- B.Y., M.D., P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51902(U))The insurer's proof raised a factual question about employment at the time of the accident for the Workers' Compensation Board to resolve first.