November 5, 2009

Bath Med. Supply, Inc. v Harco Natl. Ins. Co. (2009 NY Slip Op 52278(U))

https://www.beynensonlaw.com/case-law/bath-med-supply-inc-v-harco-natl-ins-co-2009-ny-slip-op-52278u/

Court: Appellate Term, Second Department
Decided: November 5, 2009
Citation: 2009 NY Slip Op 52278(U) · 25 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Priority, other coverage
Legal questions: Workers' comp or other insurer primary (see the maps)

Cite as

Bath Med. Supply, Inc. v Harco Natl. Ins. Co., 25 Misc 3d 137(A), 2009 NY Slip Op 52278(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2009)

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.

A provider's summary judgment motion should be held in abeyance pending a Workers' Compensation Board determination of the assignor's eligibility. The insurer opposed the motion based on a timely denial asserting eligibility for workers' compensation benefits. The Appellate Term, Second Department, recognized the Board's authority to determine entitlement under the Workers' Compensation Law, but reversed the dismissal, reinstated the complaint, and remitted the motion to be held in abeyance pending a prompt application to the Board. The provider must file proof of that application within 90 days of the appellate order; otherwise, absent good cause, the District Court must deny the provider's motion and grant the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Bath Med. Supply, Inc. v Harco Natl. Ins. Co. (2009 NY Slip Op 52278(U))

[*1]

Bath Med. Supply, Inc. v Harco Natl. Ins. Co.

2009 NY Slip Op 52278(U) [25 Misc 3d 137(A)]

Decided on November 5, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2008-2202 N C.

Bath Medical Supply, Inc. a/a/o RODRIGO S. PARRA, Appellant,
against
Harco National Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered September 8, 2008. The order, upon a motion by plaintiff for summary judgment, dismissed the complaint and referred the matter to the Workers’ Compensation Board.

ORDERED that the order is reversed without costs, the complaint is reinstated and plaintiff’s motion is remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiff fails to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiff’s motion and grant summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it had timely denied plaintiff’s claim based upon the assignor’s eligibility for workers’ compensation benefits. The District Court dismissed the complaint and referred the matter to the Workers’ Compensation Board. This appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the Workers’ Compensation Board has the authority to determine whether plaintiff’s assignor is entitled to Workers’ Compensation benefits (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). However, the District Court should not have dismissed the complaint and referred the [*2]matter to the Workers’ Compensation Board but, rather, should have held plaintiff’s motion in abeyance. Accordingly, the order is reversed, the complaint reinstated and plaintiff’s motion remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: November 05, 2009

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 may apply: the Board decides first and the no-fault claim waits

Held the Board had authority to determine the assignor's entitlement to workers' compensation, but the complaint should not have been dismissed; the motion was instead to be held in abeyance pending a prompt Board application with a 90-day clause.

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, 33 (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. (2009 NY Slip Op 29271) FollowedThe insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution.

Similar decisions

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.
Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51675(U))The assignor's sworn no-fault application raised a workers' compensation issue requiring a stay pending a Workers' Compensation Board determination.
Inwood Hill Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2009 NY Slip Op 51264(U))The insurer was precluded from asserting a workers' compensation defense because it failed to establish timely mailing of its denial.
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.
W.H.O. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50532(U))The insurer's evidence raised a workers' compensation eligibility issue requiring initial resolution by the Workers' Compensation Board.