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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/

Court
Appellate Term, Second Department
Decided
January 20, 2017
Citation
2017 NY Slip Op 50105(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
Flatbush Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50105(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 provider's database search did not justify renewal or excuse noncompliance with an order requiring Workers' Compensation Board review. Civil Court stayed the no-fault action pending resolution of whether the assignor was injured during employment, allowing dismissal absent a Board filing within 90 days or good cause. The provider later sought renewal based on a search finding no benefits application. Under CPLR 2221 (e) (2) and (3), renewal requires new facts changing the prior determination and reasonable justification for their earlier omission. Workers' Compensation Law §§ 28 and 33 require the injured worker to file within two years and prohibit assignment. The provider showed neither a proper application nor good cause. The Appellate Term, Second Department, affirmed dismissal and denial of renewal.

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

Flatbush Chiropractic, P.C., as Assignee of PIERRE LUXIO, Appellant,

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.

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

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.

  • Appellate DivisionApp Div 8
  • Appellate TermApp Term 42
  • Trial courtsTrial 19
2014, Appellate Division: 1 decision (1 First insurer must pay)2010, Appellate Division: 1 decision (1 Referred to WC Board)2009, Appellate Division: 3 decisions (1 Referred to WC Board, 1 WC defense not shown, 1 WC defense precluded)2007, Appellate Division: 2 decisions (1 Referred to WC Board, 1 WC defense not shown)2024, Appellate Division: 1 decision (1 Referred to WC Board)2021, Appellate Term: 1 decision (1 Referred to WC Board)2020, Appellate Term: 1 decision (1 Referred to WC Board)2019, Appellate Term: 6 decisions (4 Referred to WC Board, 1 WC primary: claim fails, 1 WC defense precluded)2018, Appellate Term: 4 decisions (1 Referred to WC Board, 3 WC primary: claim fails)2017, Appellate Term: 4 decisions (3 Referred to WC Board, 1 WC primary: claim fails)2016, Appellate Term: 1 decision (1 WC defense precluded)2015, Appellate Term: 1 decision (1 Referred to WC Board)2014, Appellate Term: 2 decisions (1 Referred to WC Board, 1 WC primary: claim fails)2013, Appellate Term: 4 decisions (3 Referred to WC Board, 1 WC defense not shown)2012, Appellate Term: 4 decisions (1 Referred to WC Board, 3 WC primary: claim fails)2011, Appellate Term: 1 decision (1 Referred to WC Board)2010, Appellate Term: 3 decisions (3 Referred to WC Board)2009, Appellate Term: 6 decisions (3 Referred to WC Board, 1 WC defense not shown, 2 WC defense precluded)2007, Appellate Term: 1 decision (1 Referred to WC Board)2005, Appellate Term: 2 decisions (1 WC defense not shown, 1 First insurer must pay)2008, Appellate Term: 1 decision (1 Referred to WC Board)2023, Trial courts: 3 decisions (1 WC primary: claim fails, 2 WC defense not shown)2022, Trial courts: 1 decision (1 No coverage, not priority)2021, Trial courts: 2 decisions (1 Referred to WC Board, 1 WC defense not shown)2019, Trial courts: 1 decision (1 No coverage, not priority)2018, Trial courts: 1 decision (1 Referred to WC Board)2016, Trial courts: 1 decision (1 Referred to WC Board)2009, Trial courts: 3 decisions (1 WC defense not shown, 2 WC defense precluded)2008, Trial courts: 2 decisions (1 WC defense not shown, 1 WC defense precluded)2007, Trial courts: 1 decision (1 First insurer must pay)2005, Trial courts: 1 decision (1 Referred to WC Board)2026, Trial courts: 3 decisions (2 WC defense precluded, 1 First insurer must pay)This decision
20052010201520202025
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.

  • 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.
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