November 5, 2009

Bath Med. Supply, Inc. v Harco Natl. Ins. Co. (2009 NY Slip Op 52278(U))

Headnote

The relevant facts the court considered were that the plaintiff, Bath Medical Supply, Inc., was seeking to recover assigned first-party no-fault benefits, but the defendant, Harco National Insurance Company, had denied the claim based on the assignor's eligibility for workers' compensation benefits. The main issue decided was whether the Workers' Compensation Board had the authority to determine whether the assignor was entitled to workers' compensation benefits. The holding of the case was that the Workers' Compensation Board did have the authority to make this determination, but the District Court should not have dismissed the complaint and referred the matter to the Board. Instead, the court ordered that the complaint be reinstated and the plaintiff's motion 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.

Reported in New York Official Reports at Bath Med. Supply, Inc. v Harco Natl. Ins. Co. (2009 NY Slip Op 52278(U))

Bath Med. Supply, Inc. v Harco Natl. Ins. Co. (2009 NY Slip Op 52278(U)) [*1]

Bath Med. Supply, Inc. v Harco Natl. Ins. Co.

2009 NY Slip Op 52278(U) [25 Misc 3d 137(A)]

Decided on November 5, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : NICOLAI, P.J., MOLIA and LaCAVA, JJ
2008-2202 N C.

Bath Medical Supply, Inc. a/a/o RODRIGO S. PARRA, Appellant,
against
Harco National Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered September 8, 2008. The order, upon a motion by plaintiff for summary judgment, dismissed the complaint and referred the matter to the Workers’ Compensation Board.

ORDERED that the order is reversed without costs, the complaint is reinstated and plaintiff’s motion is remitted 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 plaintiff fails 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 plaintiff’s motion and grant summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it had timely denied plaintiff’s claim based upon the assignor’s eligibility for workers’ compensation benefits. The District Court dismissed the complaint and referred the matter to the Workers’ Compensation Board. This appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the Workers’ Compensation Board has the authority to determine whether plaintiff’s assignor is entitled to Workers’ Compensation benefits (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). However, the District Court should not have dismissed the complaint and referred the [*2]matter to the Workers’ Compensation Board but, rather, should have held plaintiff’s motion in abeyance. Accordingly, the order is reversed, the complaint reinstated and plaintiff’s motion remitted 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.

Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: November 05, 2009