April 25, 2012

A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2012 NY Slip Op 50764(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-american-tr-ins-co-2012-ny-slip-op50764u/

Court
Appellate Term, Second Department
Decided
April 25, 2012
Citation
2012 NY Slip Op 50764(U) · 35 Misc 3d 134(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Priority, other coverage Discovery and procedure
Legal questions
Workers' comp or other insurer primary (see the maps)
Cite as
A.B. Med. Servs., PLLC v American Tr. Ins. Co., 35 Misc 3d 134(A), 2012 NY Slip Op 50764(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2012)

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 providers failed to show a proper workers' compensation application within the deadline imposed by the prior appellate order. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers summary judgment and granting the insurer's cross motion dismissing the complaint. An earlier appeal required a prompt application to the Workers' Compensation Board and proof of that application within 90 days of entry of the appellate order. Absent compliance or good cause, the District Court was to deny the providers' motion and dismiss the complaint by reverse summary judgment. Citing Workers' Compensation Law § 33, the appellate court found no showing of a proper application within the prescribed period.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2012 NY Slip Op 50764(U))

[*1]
A.B. Med. Servs., PLLC v American Tr. Ins. Co.
2012 NY Slip Op 50764(U) [35 Misc 3d 134(A)]
Decided on April 25, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
.
A.B. Medical Services, PLLC and RW HEALTH PLUS CHIROPRACTIC, P.C. as Assignees of WILKENS LaGUERRE, Appellants, —

against

American Transit Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Andrea Phoenix, J.), dated November 22, 2010. The order, insofar as appealed from, denied the branch of plaintiffs’ motion seeking summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is 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 had been 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 appealed from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance. On appeal, by order dated June 18, 2009, this court modified the District Court’s order “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” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76 [App Term, 9th & 10th Jud Dists 2009]; see LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Thereafter, plaintiffs moved for leave to renew their prior motion for summary judgment. [*2]Defendant opposed plaintiffs’ motion and cross-moved for summary judgment dismissing the complaint pursuant to this court’s June 18, 2009 order. By order dated November 22, 2010, the District Court, insofar as is relevant to this appeal, denied the branch of plaintiffs’ motion seeking summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint, finding that a proper application to the Board, pursuant to this court’s June 18, 2009 order, had not been made.

Since plaintiffs did not demonstrate that a proper application for workers’ compensation benefits had been made in accordance with the Workers’ Compensation Law (see e.g. Workers’ Compensation Law § 33) within the time provisions set forth in this court’s order dated June 18, 2009, they failed to establish that they had complied with this court’s order. Accordingly, the order, insofar as appealed from, is affirmed.

Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: April 25, 2012

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