April 8, 2013
W.H.O. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50532(U))
https://www.beynensonlaw.com/case-law/w-h-o-acupuncture-p-c-v-american-tr-ins-co-2013-ny-slip-op50532u/
- Decided
- April 8, 2013
- Citation
- 2013 NY Slip Op 50532(U) · 39 Misc 3d 134(A)
- Posture
- Summary judgment
- Issues
- Priority, other coverage
- 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 W.H.O. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50532(U))
| W.H.O. Acupuncture, P.C. v American Tr. Ins. Co. |
| 2013 NY Slip Op 50532(U) [39 Misc 3d 134(A)] |
| Decided on April 8, 2013 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-2036 K C.
against
American Transit Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 2, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint and plaintiff’s cross motion for summary judgment are remitted to the Civil Court for a new determination after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. In the event plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint and deny plaintiff’s cross motion for summary judgment unless plaintiff shows good cause why the complaint should not be dismissed. [*2]
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff’s assignors’ alleged eligibility for workers’ compensation benefits, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion, on the ground that defendant had failed to proffer evidence in admissible form in support of its defense, and granted plaintiff’s cross motion.
Defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiff’s assignors had been acting as employees at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (Board) (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).
Accordingly, defendant’s motion and plaintiff’s cross motion should not have been determined. Instead, the Civil Court should decide the motions after final Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 08, 2013
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 may apply: the Board decides first and the no-fault claim waits
Held the insurer's admissible proof raised an issue whether the assignors were acting as employees, which the Board must resolve first, so both summary judgment motions were remitted pending a prompt Board application with a 90-day conditional dismissal.
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
A label shows how this decision treated the case it cites.
- Jamaica Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 52371(U)) FollowedThe insurer raised a triable workers' compensation eligibility issue 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)) FollowedThe 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)) FollowedThe insurer's evidence required the Workers' Compensation Board to resolve the assignor's alleged eligibility for workers' compensation benefits.
- Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U)) FollowedThe Workers' Compensation Board must resolve whether the assignor was acting as an employee when the accident occurred.
- Westchester Med. Ctr. v American Tr. Ins. Co. (2009 NY Slip Op 01979) Contrasted (cf., but see)The insurer's timely verification request and ensuing timely denial defeated the provider's motion for summary judgment.
- Dunn v American Tr. Ins. Co. (2010 NY Slip Op 01757) FollowedThe Workers' Compensation Board has primary jurisdiction to resolve disputed employment status bearing on entitlement to workers' compensation benefits.
- 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
- 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.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51192(U))The insurer's evidence raised an issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board.
- 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.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 29271)The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution.
- 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.