April 8, 2013
Arce Med. & Diagnostic Svce v American Tr. Ins. Co. (2013 NY Slip Op 50531(U))
https://www.beynensonlaw.com/case-law/arce-med-diagnostic-svce-v-american-tr-ins-co-2013-ny-slip-op50531u/
- Decided
- April 8, 2013
- Citation
- 2013 NY Slip Op 50531(U) · 39 Misc 3d 134(A)
- Posture
- Other motion
- Outcome
- Insurer prevailed
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 Arce Med. & Diagnostic Svce v American Tr. Ins. Co. (2013 NY Slip Op 50531(U))
| Arce Med. & Diagnostic Svce v American Tr. Ins. Co. |
| 2013 NY Slip Op 50531(U) [39 Misc 3d 134(A)] |
| Decided on April 8, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : RIOS, J.P., PESCE and ALIOTTA, JJ
2011-1854 Q C.
against
American Transit Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 2, 2011. The order granted defendant’s motion to stay the action pending a determination of 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 appeals from an order of the Civil Court which granted defendant’s motion to stay the action pending a determination of the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.
We agree with the Civil Court that defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, and that therefore workers’ compensation benefits might be available (see e.g. Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], [*2]2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). This issue must be resolved in the first instance by the Workers’ Compensation Board (Board) (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).
In view of the foregoing, the Civil Court properly granted defendant’s motion for a stay pending the Board’s determination of the parties’ rights under the Workers’ Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]; see also Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [holding, among other things, that in the event plaintiff failed to file proof with the motion court of an application to the Workers’ Compensation Board within 90 days of the date of the Appellate Term’s decision and order, defendant’s cross motion for summary judgment would be granted unless plaintiff could show good cause why the complaint should not be dismissed]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [same]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [same]).
Accordingly, the order of the Civil Court is affirmed.
Rios, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 08, 2013
Cited in this decision
A label shows how this decision treated the case it cites.
- Jamaica Med. Supply, Inc. v American Tr. Ins. Co. (2011 NY Slip Op 52371(U)) FollowedThe insurer raised a triable workers' compensation eligibility issue requiring initial resolution by the Workers' Compensation Board.
- D.A.V. Chiropractic, P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51738(U)) FollowedThe 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)) FollowedThe insurer's evidence required the Workers' Compensation Board to resolve the assignor's alleged eligibility for workers' compensation benefits.
- Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U)) FollowedThe Workers' Compensation Board must resolve whether the assignor was acting as an employee when the accident occurred.
- Westchester Med. Ctr. v American Tr. Ins. Co. (2009 NY Slip Op 01979)The insurer's timely verification request and ensuing timely denial defeated the provider's motion for summary judgment.
- Dunn v American Tr. Ins. Co. (2010 NY Slip Op 01757) FollowedThe Workers' Compensation Board has primary jurisdiction to resolve disputed employment status bearing on entitlement to workers' compensation benefits.
- LMK Psychological Serv., P.C. v American Tr. Ins. Co. (2009 NY Slip Op 06004) FollowedThe Workers' Compensation Board has primary jurisdiction to determine factual issues concerning workers' compensation coverage.
Cited by
- 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.
- Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (2014 NY Slip Op 50340(U))The insurer raised a triable issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board.
- New Millennium Radiology, P.C. v American Tr. Ins. Co. (2018 NY Slip Op 50940(U))The insurer's evidence raised an employment-related coverage issue requiring an initial Workers' Compensation Board determination.
- Quality Health Prod., Inc. v American Tr. Ins. Co. (2019 NY Slip Op 51950(U))The insurer established an employment-related coverage issue requiring an initial determination by the Workers' Compensation Board.
- Madison Prods. of USA, Inc. v American Tr. Ins. Co. (2020 NY Slip Op 50749(U))A workers' compensation defense is precluded by an untimely denial, requiring a threshold timeliness determination before a stay.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51192(U))The insurer's evidence raised an issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board.
- Metro Psychological Servs., P.C. v Travelers Prop. & Cas. Ins. Co. (2017 NY Slip Op 51804(U))The Workers' Compensation Board must resolve whether the assignor acted as an employee at the time of the accident.
- 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.
- Metro Psychological Servs., P.C. v Travelers Prop. & Cas. Ins. Co. (2019 NY Slip Op 51150(U))The Workers' Compensation Board has primary jurisdiction to decide whether an assignor was acting as an employee when injured.
Similar decisions
- 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.
- Parkway Pain Mgt., PLLC v American Tr. Ins. Co. (2013 NY Slip Op 50521(U))The insurer's proof, including a police accident report, warranted a stay to resolve possible workers' compensation eligibility.
- Ortho Pro Labs, Inc. v American Tr. Ins. Co. (2009 NY Slip Op 52693(U))The assignor's sworn no-fault application raised a factual question about employment that the Workers' Compensation Board had to resolve first.