June 18, 2009
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 29271)
https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-american-tr-ins-co-2009-ny-slip-op-29271/
- Decided
- June 18, 2009
- Citation
- 2009 NY Slip Op 29271 · 24 Misc 3d 75
- Posture
- Summary judgment
- Later treatment
- Followed in 3 later decisions (see Cited by)
- Issues
- Priority, other coverage
- Legal questions
- Workers' comp or other insurer primary (see the maps)
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.
Reported in New York Official Reports at A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 29271)
| A.B. Med. Servs., PLLC v American Tr. Ins. Co. |
| 2009 NY Slip Op 29271 [24 Misc 3d 75] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, September 9, 2009 |
[*1]
| A.B. Medical Services, PLLC, et al., as Assignee of Wilkens LaGuerre, Appellants, v American Transit Insurance Company, Respondent. |
Supreme Court, Appellate Term, Second Department, June 18, 2009
APPEARANCES OF COUNSEL
Amos Weinberg, Great Neck, for appellants. Daniel J. Tucker, New York City, and Thomas Torto, New York City, for respondent.
{**24 Misc 3d at 76} OPINION OF THE COURT
Memorandum.
Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment and by remitting plaintiffs’ motion 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 plaintiffs’ motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint 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 [*2]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. 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.
Defendant’s proof was sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21{**24 Misc 3d at 77} Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; 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. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiffs’ motion should not have been denied without prejudice but, rather, held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law.
Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
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.
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 insurer's proof raised a question of fact whether the assignor was acting as an employee, which the Board must resolve first, so the provider's motion was held in abeyance pending a prompt Board application with a 90-day dismissal clause.
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.
- Westchester Med. Ctr. v American Tr. Ins. Co. (2009 NY Slip Op 01979) Contrasted (cf., but see)The insurer's timely verification request and ensuing timely denial defeated the provider's motion for summary judgment.
- Infinity Health Prods., Ltd. v New York City Tr. Auth. (2008 NY Slip Op 52218(U))The defendant's proof raised an employment-status question requiring determination by the Workers' Compensation Board.
- Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U))The Workers' Compensation Board must resolve whether the assignor was acting as an employee when the accident occurred.
- A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 50959(U)) Contrasted (cf., but see)The insurer failed to show potential merit in its workers' compensation defense sufficient to warrant Workers' Compensation Board review.
Cited by
A label shows how the later decision treated this one.
- Ortho Pro Labs, Inc. v American Tr. Ins. Co. (2009 NY Slip Op 52693(U)) FollowedThe assignor's sworn no-fault application raised a factual question about employment that the Workers' Compensation Board had to resolve first.
- 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.
- Bath Med. Supply, Inc. v Harco Natl. Ins. Co. (2009 NY Slip Op 52278(U)) FollowedA provider's summary judgment motion should be held in abeyance pending a Workers' Compensation Board determination of the assignor's eligibility.
- 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.
- 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.
- American Tr. Ins. Co. v North Shore Family Chiropractic PC (2023 NY Slip Op 50208(U))The insurer's police report did not require referral of its course-of-employment defense to the Workers' Compensation Board.
- 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.
Similar decisions
- B.Y., M.D., P.C. v Global Liberty Ins. Co. of N.Y. (2012 NY Slip Op 50156(U))The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution.
- 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.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50419(U))The Workers' Compensation Board must first resolve eligibility when evidence raises an issue whether the assignor was injured in the course of employment.
- 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.
- 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.