Corona Comprehensive Med. Care, P.C. v Global Liberty Ins. Co. of N.Y. (2009 NY Slip Op 51432(U))

Civil Court of the City of New York, Queens County

88511/08

Cheree A. Buggs, J.

Defendant Global Liberty Insurance Company of New York (“defendant”) filed a motion for summary judgment pursuant to Civil Practice Law and Rules (CPLR) § 3212 and § 3211 [a] [7] on grounds that No-Fault Insurance does not cover a claim submitted by plaintiff Corona Comprehensive Medical Care (“plaintiff”). Plaintiff, the assignee of medical benefits of the operator of a for-hire vehicle, filed a $1,333.24 claim for no-fault insurance benefits for medical services provided to the vehicle operator for injuries arising from an automobile accident. Defendant’s contention is that the for-hire vehicle operator was working when the accident occurred on March 20, 2007, and therefore the plaintiff’s claim is payable through Workers’ Compensation Insurance from the New York Black Car Operators’ Injury Compensation Fund and not under the No Fault Insurance Law. Plaintiff opposes the defendant’s motion on several grounds, chief among them are that defendant’s claim is not a lack of coverage defense, and therefore, must be raised in a timely denial; that the defendant failed to show that a timely denial was mailed, or that such denial was mailed in duplicate; and lastly, that the existence of workers’ compensation coverage does not prevent a person from recovering no-fault benefits.

Background

It is undisputed that on March 20, 2007, the plaintiff’s assignor, Maria Cruz Martinezwasinvolved in a vehicular accident. Defendant alleges that the assignor was about to join the livery vehicle passenger pickup line on Broad Street off of Pearl Street in Lower Manhattan when the accident occurred. Plaintiff provided medical services to Ms. Martinez (the nature of which are not specified in any of the papers herein), and as assignee of Ms. Martinez, submitted a claim to the defendant for payment. Defendant insurance company alleges that although a timely denial was not required, a timely denial of claim form (“NF-10”) was issued on June 12, 2007.

[*2]DiscussionThe movant on a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, proffering sufficient evidence to eliminate all material issues of fact from the case (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851 [1985]).

In support of its motion, defendant has offered the sworn affidavits of Mahmoud Ragab, its Vice President of Underwriting and of Dwight Geddes, its Fault Claims Manager. Mr. Geddes attested that the defendant is a licensed insurance carrier for three categories of vehicles for hire, e.g.,”black car,” luxury and car service vehicles, and is not licensed to insure private vehicles. According to both affidavits, the assignor was a member of Corporate Transportation Group, LTD, CTG/Optimum Car and Limo dispatch, which is a member of the New York Black Car Operators Injury Compensation Fund as required by the New York City Taxi and Limousine Commission and Executive Law § 160-cc, et seq. The affidavits indicate that the plaintiff’s assignor’s license plate number was “T484693C,” and that the “T” and “C” on a New York license plate indicate a for-hire vehicle under the New York City Taxi and Limousine Commission. According to Mr. Ragab’s affidavit, black car operators must be affiliated with a dispatch or base, and the base must provide Workers’ Compensation Insurance if a driver is injured while working.

The New York Black Car Operators’ Injury Compensation Fund is a not-for-profit corporation, which was created by statute in order to ensure that black car operators who are injured while performing duties on behalf of central dispatch facilities receive workers’ compensation benefits. The central dispatch facilities are required to be members of the fund as a condition to obtaining or retaining their licenses (See NY Exec Law § 160-dd, et seq.). Pursuant to NY Executive Law § 160-cc [1], a ” [b]lack car operator’ means the registered owner of a for-hire vehicle, or a driver designated by such registered owner to operate the registered owner’s for-hire vehicle as the registered owner’s authorized designee, whose injury arose out of and in the course of providing covered services to a central dispatch facility that is a registered member of the New York black car operators’ injury compensation fund, inc.” According to Executive Law § 160-cc [4] ” covered services’ means, with respect to dispatches from or by a central dispatch facility located in the state, all dispatches from such central dispatch facility regardless of where the pick-up or discharge occurs, and, with respect to dispatches from or by a central dispatch facility located outside the state, all dispatches involving a pick-up in the state, regardless of where the discharge occurs.”

Defendant alleges that because the vehicle operator was involved in a motor vehicle accident while on duty, plaintiff is entitled to be reimbursed under Workers’ Compensation Insurance from the New York Black Car Operators’ Injury Compensation Fund, and not under the no-fault law. Insurance Law §§5102 [b] and [b][2] state “first party benefits” are payments meant to “reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle less amounts recovered or recoverable on account of such injury under state or federal laws providing social security disability benefits, or workers’ compensation benefits…” Pursuant to Insurance Law § 5102 [b][2], workers’ compensation benefits “serve as an offset against first-party benefits payable under no-fault as compensation for basic economic loss” (see also Arvatz v Empire Mutual Ins. Co., 171 AD2d 262, 268 [1991]). It is solely within the jurisdiction of the Workers’ Compensation Board to determine whether claimed injuries occurred while in the course of one’s employment (see Liss v Trans Auto Sys., 68 NY2d 15 [1986]; O’Rourke v Long, 41 NY2d 219 [1976]; O’Hurley-Pitts v Diocese of Rockville Centre, 57 AD3d 633 [2008]; [*3]Mattaldi v Beth Israel Med. Ctr., 297 AD2d 234, 235 [2002]). Workers’ Compensation Law § 142 [7] states that “[w]here there has been a motor vehicle accident which caused personal injury and there is a dispute as to whether the injury occurred in the course of employment, the Workers’ Compensation Board shall … hold an expedited hearing … whether the accident occurred within the course of employment”. (See also Jing Huo Lac v American Transit Ins. Co., 19 Misc 3d 1146[A], 2008 NY Slip Op 51177 [U] [Civ Ct, Richmond County 2008].)

Further, the defendant alleges that even if the plaintiff’s claim was not timely denied, the absence of such timely denial would not bar the defense of lack of coverage based upon the Workers’ Compensation Law, and there would be no need for the defendant insurer to issue a timely denial (see Hosp. For Joint Diseases v Travelers Prop. Cas. Ins., 9 NY3d 312, 318 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Co., 90 NY2d 195 [1997]).

However, defendant’s contention that there was a valid lack of coverage defense to the plaintiff’s claim based upon workers’ compensation being the “primary” provider of benefits in the instant matter is misplaced, since the Second Department has held to the contrary. An argument of workers’ compensation being primary is not deemed to be a lack of coverage defense, but rather, a statutory offset subject to preclusion if not timely raised (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

In accordance with Insurance Law and regulations, an insurer has thirty days from the receipt

of a claim to either pay or deny the claim (see Insurance Law §5106 [a];11 NYCRR 65-3.8 [c]). Inasmuch as defendant’s principal focus in the matter herein is the workers’ compensation issue, with a presumption that such issue constitutes a lack of coverage defense, it failed to submit admissible proof that the denial was actually mailed. Although defendant contends that it issued a timely denial, it has not proffered an affidavit from an employee with either actual knowledge of the mailing of the NF-10 denial of claim form or from an employee familiar with standard office practices and procedures, which would be sufficient to establish mailing (see New York & Presbyterian Hosp. v Allstate ins. Co., 30 AD3d 492 [2006], Ying Eastern Acupuncture v Global Liberty Ins., 20 Misc 3d 144 [A], 2008 NY Slip Op 51863 [U] [App Term, 2d & 11th Jud Dists 2008]; cf. St. Vincent’s Hosp. v Geico, 50 AD3d 1123, 1124 [2008]; Midisland Med., PLLC v Allstate Ins. Co., 20 Misc 3d 144 [A], 2008 NY Slip Op 51861 [U] [App Term, 2d & 11th Jud Dists 2008].) In his affidavit, defendant’s claims manager, Mr. Geddes attested to the receipt of mail/claims and processing of claims, but failed to attest to when the denial was mailed or what the standard office practices are regarding actual mailing. Therefore, defendant has not presented evidence that the workers’ compensation defense was preserved in a timely denial.

Although in the case at bar, the defendant has proffered some admissible evidence regarding the workers’ compensation defense, in the absence of proof of the defendant’s mailing of a timely denial based upon this defense, the Court cannot address whether there is “potential merit” of its claim that the plaintiff’s assignor, Ms. Martinez, was acting within the course of her employment at the time of the accident (see A. B. Med. Servs., PLLC v American Transit Ins. Co., 8 Misc 3d 127 [A], 2005 NY Slip Op 50959 [U] [App Term 2d & 11th Jud Dist 2005]; Lenox Hill Radiology, P.C. v American Transit Ins. Co., 18 Misc 3d 1136 [A], 2008 NY Slip Op 50330 [U] [Civ Ct, New York County 2008]).

Based upon the foregoing, the Court finds that the defendant has failed to meet the required prima facie showing of entitlement to judgment as a matter of law to support its summary judgment [*4]motion. Consequently, defendant’s motion for summary judgment is denied in its entirety.

This constitutes the decision and order of this Court.

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Date““““““Hon. Chereé A. Buggs

Judge, Civil Court