December 7, 2012

Alev Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 52271(U))

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-american-tr-ins-co-2012-ny-slip-op52271u/

Court: Appellate Term, Second Department
Decided: December 7, 2012
Citation: 2012 NY Slip Op 52271(U) · 37 Misc 3d 141
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Priority, other coverage Discovery and procedure
Legal questions: Workers' comp or other insurer primary (see the maps)

Cite as

Alev Med. Supply, Inc. v American Tr. Ins. Co., 37 Misc 3d 141 (App Term, 2d Dept, 9th & 10th Jud Dists 2012)

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 complaint was dismissed after it failed to show compliance with an order requiring a workers' compensation application. A prior order stayed the no-fault action and required proof within 90 days that the assignor had applied to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. It provided for summary judgment dismissing the complaint upon noncompliance unless the provider showed good cause. In opposing the insurer's subsequent motion, the provider demonstrated neither an application nor good cause against dismissal. The Appellate Term, Second Department, affirmed the order granting the insurer's motion, in effect, for summary judgment dismissing the complaint.

Reported in New York Official Reports at Alev Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 52271(U))

[*1]

Alev Med. Supply, Inc. v American Tr. Ins. Co.

2012 NY Slip Op 52271(U) [37 Misc 3d 141]

Decided on December 7, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : LaSALLE, J.P., MOLIA and IANNACCI, JJ
2011-2359 N C.

Alev Medical Supply, Inc. as Assignee of MUHAMMAD RAUF, Appellant, —
against
American Transit Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated August 1, 2011. The order granted defendant’s motion for, in effect, summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the District Court, by order dated December 10, 2010, stayed the action and required plaintiff to file proof, within 90 days of the date of the order, that its assignor had filed an application with the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The order further provided that, in the event plaintiff failed to do so, defendant’s motion for summary judgment dismissing the complaint would be granted unless plaintiff showed good cause why the complaint should not be dismissed.

Thereafter, defendant moved for, in effect, summary judgment dismissing the complaint, asserting that plaintiff had failed to comply with the prior order. As plaintiff failed to demonstrate in opposition to defendant’s instant motion that its assignor had made such an application, and did not show good cause why the complaint should not be dismissed, the District [*2]Court properly granted defendant’s motion for, in effect, summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 35 Misc 3d 134[A], 2012 NY Slip Op 50764[U] [App Term, 9th & 10th Jud Dists 2012]). Accordingly, the order is affirmed.

LaSalle, J.P., Molia and Iannacci, JJ., concur.
Decision Date: December 07, 2012

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, after a stay order requiring proof of a Board application within 90 days, the provider showed neither that the assignor applied to the Board nor good cause.

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 50764(U)) FollowedThe providers failed to show a proper workers' compensation application within the deadline imposed by the prior appellate order.

Similar decisions

Alev Med. Supply, Inc. v Eveready Ins. Co. (2012 NY Slip Op 52184(U))The provider's action was premature because the insurer had not received all verification requested before suit commenced.
Alleviation Med. Servs., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51628(U))The provider failed to establish an overdue claim or a timely denial that was conclusory, vague, or legally meritless.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50825(U))The insurer's motion for summary judgment dismissing the provider's complaint for assigned no-fault benefits was granted.
Medical Careworks, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 51281(U))The insurer established late notice of the accident, and the provider offered neither contrary proof nor a reasonable justification.
Daily Med. Equip. Distrib. Ctr., Inc. v American Tr. Ins. Co. (2016 NY Slip Op 51621(U))The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case.