March 26, 2021
Active Care Med. Supply Corp. v Global Liberty Ins. (2021 NY Slip Op 50257(U))
https://www.beynensonlaw.com/case-law/active-care-med-supply-corp-v-global-liberty-ins-2021-ny-slip-op50257u/
- Decided
- March 26, 2021
- Citation
- 2021 NY Slip Op 50257(U) · 71 Misc 3d 129(A)
- Posture
- Other motion
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Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at Active Care Med. Supply Corp. v Global Liberty Ins. (2021 NY Slip Op 50257(U))
| Active Care Med. Supply Corp. v Global Liberty Ins. |
| 2021 NY Slip Op 50257(U) [71 Misc 3d 129(A)] |
| Decided on March 26, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-835 K C
against
Global Liberty Insurance, Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), dated March 7, 2019. The order denied defendant’s motion, pursuant to CPLR 4404, to set aside a decision of the Civil Court made after a nonjury trial and for a new trial.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion, pursuant to CPLR 4404, to set aside the decision of the Civil Court and for a new trial is granted.
In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held which, pursuant to a prior order, was limited to the issue of “whether Worker[s’] Compensation is primary.” After the trial, upon finding that defendant’s certified transcript of an examination under oath (EUO) of plaintiff’s assignor was not admissible based on law of the case, the court found in favor of plaintiff. Defendant moved, pursuant to CPLR 4404 (b), to set aside the decision and for a new trial. Defendant appeals from an order of the Civil Court dated March 7, 2019 denying its motion.
We find that the Civil Court should have considered the certified EUO transcript to determine whether defendant had proffered “sufficient evidence to support its contention that there was an issue 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” (Quality Health Prod., Inc. v American Tr. Ins. Co., 65 Misc 3d 155[A], 2019 NY Slip Op 51950[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).
Accordingly, the order is reversed and defendant’s motion, pursuant to CPLR 4404, to set aside the decision of the Civil Court and for a new trial is granted.
WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 26, 2021
Cited in this decision
A label shows how this decision treated the case it cites.
- Quality Health Prod., Inc. v American Tr. Ins. Co. (2019 NY Slip Op 51950(U)) FollowedThe insurer established an employment-related coverage issue requiring an initial determination by the Workers' Compensation Board.
Cited by
- 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.
Similar decisions
- 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.
- Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51824(U))The insurer's CPLR 4404 (b) motion to set aside the nonjury trial decision was granted after its expert witnesses were precluded.
- Y.A.M. Med. Supply, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51801(U))The insurer failed to prove a timely workers' compensation denial, defeating its request to hold the no-fault action in abeyance.
- Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.
- Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal.