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

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

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