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June 18, 2009

A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51263(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-american-tr-ins-co-2009-ny-slip-op51263u/

Court
Appellate Term, Second Department
Decided
June 18, 2009
Citation
2009 NY Slip Op 51263(U) · 24 Misc 3d 127(A)
Posture
Summary judgment
Outcome
Split result
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Timeliness and preclusion Priority, other coverage
Legal questions
Workers' comp or other insurer primary (see the maps)
Cite as
A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 127(A), 2009 NY Slip Op 51263(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.

The insurer's workers' compensation defense was precluded for three claims denied after the 30-day determination period. Under 11 NYCRR 65-3.5 (a), the insurer had to deny claims timely to preserve that defense. The Appellate Term, Second Department, modified the order, insofar as appealed from, granting the providers summary judgment on those claims and remitting for interest and attorney's fees. For the reasons stated in the companion appeal decided the same day, No. 2008-281 N C, the remaining, timely denied claims were remitted to be held in abeyance pending an application to the Workers' Compensation Board. Absent proof of that application within 90 days or good cause, the District Court was directed to deny the providers' motion and grant the insurer reverse summary judgment on those claims.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 51263(U))

[*1]
A.B. Med. Servs., PLLC v American Tr. Ins. Co.
2009 NY Slip Op 51263(U) [24 Misc 3d 127(A)]
Decided on June 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., TANENBAUM and LaCAVA, JJ
2008-290 N C.
A.B. Medical Services, PLLC, LVOV ACUPUNCTURE, P.C. and RW HEALTH PLUS CHIROPRACTIC, P.C. a/a/o FELIX ZORRILLA, Appellants,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered November 21, 2007. The order, insofar as appealed from, denied without prejudice plaintiffs’ motion for summary judgment and held the action in abeyance pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment, by providing that so much of plaintiffs’ motion as sought summary judgment upon claims for the sums of $49.26, $188.16, and $101.10 (dates of service 11/2/06-11/9/06) is granted and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon, and by remitting so much of plaintiffs’ motion as sought summary judgment with respect to the remaining claims 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 plaintiffs fail 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 so much of plaintiffs’ motion as related to the remaining claims and grant reverse summary [*2]judgment in favor of defendant dismissing the complaint with respect to the remaining claims unless plaintiffs show good cause why the complaint with respect to the remaining claims should not be dismissed. As so modified, order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied the motion and cross motion without prejudice, and held the action in abeyance pending a determination by the Board, finding that there were mixed questions of law and fact regarding the availability of workers’ compensation benefits, over which the Board had primary jurisdiction. Plaintiffs appeal from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance.

Since the defense of the assignor’s eligibility for workers’ compensation benefits is subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant was required to demonstrate that it timely denied plaintiffs’ claims on said ground within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to plaintiffs’ claims for $49.26, $188.16 and $101.10 (dates of service 11/2/06-11/9/06), the record indicates that defendant did not deny said claims within the 30-day determination period. Defendant was, therefore, precluded from raising its defense of workers’ compensation eligibility as to said claims. Consequently, so much of plaintiffs’ motion as sought summary judgment with respect to the aforementioned claims is granted, and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon.

The remaining claims were timely denied based on the assignor’s alleged eligibility for workers’ compensation benefits. For the reasons stated in A.B. Med. Servs., PLLC a/a/o Wilkens LaGuerre v Amer. Tr. Ins. Co. ( Misc 3d , 2009 NY Slip Op [No. 2008-281 N C], decided herewith), so much of plaintiffs’ motion seeking summary judgment with respect to these claims is remitted to the District Court to be held in abeyance pending a prompt application to the Board, as set forth above.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 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: The insurer may not rely on workers' compensation because it did not raise it in time

Held the workers' compensation eligibility defense subject to preclusion, granting the provider judgment on claims not denied within 30 days, while the timely denied claims were held in abeyance pending a prompt Board application.

  • Appellate DivisionApp Div 8
  • Appellate TermApp Term 42
  • Trial courtsTrial 19
2014, Appellate Division: 1 decision (1 First insurer must pay)2010, Appellate Division: 1 decision (1 Referred to WC Board)2009, Appellate Division: 3 decisions (1 Referred to WC Board, 1 WC defense not shown, 1 WC defense precluded)2007, Appellate Division: 2 decisions (1 Referred to WC Board, 1 WC defense not shown)2024, Appellate Division: 1 decision (1 Referred to WC Board)2021, Appellate Term: 1 decision (1 Referred to WC Board)2020, Appellate Term: 1 decision (1 Referred to WC Board)2019, Appellate Term: 6 decisions (4 Referred to WC Board, 1 WC primary: claim fails, 1 WC defense precluded)2018, Appellate Term: 4 decisions (1 Referred to WC Board, 3 WC primary: claim fails)2017, Appellate Term: 4 decisions (3 Referred to WC Board, 1 WC primary: claim fails)2016, Appellate Term: 1 decision (1 WC defense precluded)2015, Appellate Term: 1 decision (1 Referred to WC Board)2014, Appellate Term: 2 decisions (1 Referred to WC Board, 1 WC primary: claim fails)2013, Appellate Term: 4 decisions (3 Referred to WC Board, 1 WC defense not shown)2012, Appellate Term: 4 decisions (1 Referred to WC Board, 3 WC primary: claim fails)2011, Appellate Term: 1 decision (1 Referred to WC Board)2010, Appellate Term: 3 decisions (3 Referred to WC Board)2009, Appellate Term: 6 decisions (3 Referred to WC Board, 1 WC defense not shown, 2 WC defense precluded)2007, Appellate Term: 1 decision (1 Referred to WC Board)2005, Appellate Term: 2 decisions (1 WC defense not shown, 1 First insurer must pay)2008, Appellate Term: 1 decision (1 Referred to WC Board)2023, Trial courts: 3 decisions (1 WC primary: claim fails, 2 WC defense not shown)2022, Trial courts: 1 decision (1 No coverage, not priority)2021, Trial courts: 2 decisions (1 Referred to WC Board, 1 WC defense not shown)2019, Trial courts: 1 decision (1 No coverage, not priority)2018, Trial courts: 1 decision (1 Referred to WC Board)2016, Trial courts: 1 decision (1 Referred to WC Board)2009, Trial courts: 3 decisions (1 WC defense not shown, 2 WC defense precluded)2008, Trial courts: 2 decisions (1 WC defense not shown, 1 WC defense precluded)2007, Trial courts: 1 decision (1 First insurer must pay)2005, Trial courts: 1 decision (1 Referred to WC Board)2026, Trial courts: 3 decisions (2 WC defense precluded, 1 First insurer must pay)This decision
20052010201520202025
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.

  • Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Cited by

A label shows how the later decision treated this one.

  • A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2014 NY Slip Op 50502(U)) FollowedThe providers' remaining claims were dismissed for failure to show a proper, timely workers' compensation application or good cause.

Similar decisions

  • B.Y., M.D., P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51902(U))The insurer's proof raised a factual question about employment at the time of the accident for the Workers' Compensation Board to resolve first.
  • A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 50959(U))The insurer failed to show potential merit in its workers' compensation defense sufficient to warrant Workers' Compensation Board review.
  • 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.
  • A.B. Med. Servs., PLLC v Country-Wide Ins. Co. (2009 NY Slip Op 50583(U))The insurer's affidavits failed to establish mailing of the IME scheduling letters, defeating its IME nonappearance defense.
  • 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.
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