April 8, 2013

Arce Med. & Diagnostic Svce v American Tr. Ins. Co. (2013 NY Slip Op 50531(U))

https://www.beynensonlaw.com/case-law/arce-med-diagnostic-svce-v-american-tr-ins-co-2013-ny-slip-op50531u/

Court
Appellate Term, Second Department
Decided
April 8, 2013
Citation
2013 NY Slip Op 50531(U) · 39 Misc 3d 134(A)
Posture
Other motion
Outcome
Insurer prevailed
Issues
Priority, other coverage Discovery and procedure
Cite as
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)

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 obtained a stay because admissible evidence raised an issue whether the assignor was eligible for workers' compensation benefits. In the provider's action for assigned no-fault benefits, the insurer submitted sufficient evidence to raise a question whether the assignor was acting as an employee at the time of the accident. Following O'Rourke v Long, the court explained that the Workers' Compensation Board must resolve that issue in the first instance. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to stay the action pending the Board's determination of the parties' rights under the Workers' Compensation Law.

Reported in New York Official Reports at Arce Med. & Diagnostic Svce v American Tr. Ins. Co. (2013 NY Slip Op 50531(U))

[*1]
Arce Med. & Diagnostic Svce v American Tr. Ins. Co.
2013 NY Slip Op 50531(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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 8, 2013

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


PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-1854 Q C.
Arce Medical & Diagnostic Svce as Assignee of HARUNUR KHAN, Appellant, —

against

American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 2, 2011. The order granted defendant’s motion to stay the action pending a determination of the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to stay the action pending a determination of the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

We agree with the Civil Court that 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 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. 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], [*2]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]; 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]).

In view of the foregoing, the Civil Court properly granted defendant’s motion for a stay pending the Board’s determination of 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]; see also Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [holding, among other things, that in the event plaintiff failed to file proof with the motion court of an application to the Workers’ Compensation Board within 90 days of the date of the Appellate Term’s decision and order, defendant’s cross motion for summary judgment would be granted unless plaintiff could show good cause why the complaint should not be dismissed]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [same]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [same]).

Accordingly, the order of the Civil Court is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 08, 2013

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