March 22, 2019

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50419(U))

https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-american-tr-ins-co-2019-ny-slip-op50419u/

Court
Appellate Term, Second Department
Decided
March 22, 2019
Citation
2019 NY Slip Op 50419(U)
Posture
Other motion
Outcome
Insurer prevailed
Issues
Priority, other coverage
Cite as
Active Care Med. Supply Corp. v American Tr. Ins. Co., 2019 NY Slip Op 50419(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 Workers' Compensation Board must first resolve eligibility when evidence raises an issue whether the assignor was injured in the course of employment. The provider moved for summary judgment on assigned no-fault claims, and the insurer sought dismissal or, alternatively, to hold the action in abeyance. The insurer submitted sufficient evidence to raise a factual issue concerning the assignor's employment status at the time of the accident and the possible availability of workers' compensation benefits. Because the Board has primary jurisdiction over applicability of the Workers' Compensation Law, the court could not first determine entitlement to no-fault benefits. The Appellate Term, Second Department, affirmed the order granting the insurer's request to hold the action in abeyance.

Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50419(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Active Care Medical Supply Corp., as Assignee of Luciano Ernesto, Appellant,

against

American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of James F. Sullivan, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 2, 2016. The order granted the branch of defendant’s cross motion seeking to hold the action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to hold the action in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. By order entered May 2, 2016, the Civil Court granted the branch of defendant’s cross motion seeking to hold the action in abeyance. Plaintiff appeals.

Defendant proffered sufficient evidence to support its contention that there is an issue of fact as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see New Millennium Radiology, P.C. v American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Compas Med., P.C. v American Tr. Ins. Co., 49 Misc 3d 146[A], 2015 NY Slip Op 51675[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since primary jurisdiction with respect to the determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board, it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro [*2]v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). In the case at bar, the Civil Court correctly recognized that the issue of eligibility for workers’ compensation benefits must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; New Millennium Radiology, P.C., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U]) before the court considers whether plaintiff is entitled to recover first-party no-fault benefits.

Accordingly, the order is affirmed.

PESCE, P.J., WESTON and ELLIOT, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 22, 2019

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