December 7, 2010
Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co. (2010 NY Slip Op 52297(U))
https://www.beynensonlaw.com/case-law/devonshire-surgical-facility-l-l-c-v-hereford-ins-co-2010-ny-slip-op52297u/
- Decided
- December 7, 2010
- Citation
- 2010 NY Slip Op 52297(U) · 30 Misc 3d 129(A)
- Posture
- Summary judgment
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Workers' comp or other insurer primary · Proof of mailing (see the maps)
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 Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co. (2010 NY Slip Op 52297(U))
| Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co. |
| 2010 NY Slip Op 52297(U) [30 Misc 3d 129(A)] |
| Decided on December 7, 2010 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., McKeon, Shulman, JJ
570658/10.
against
Hereford Insurance Company, Defendant-Respondent.
Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 4, 2009, which granted defendant’s cross motion for summary judgment dismissing the complaint and denied plaintiffs’ motion for summary judgment.
Per Curiam.
Order (Arlene P. Bluth, J.), entered August 4, 2009, reversed, without costs, the order vacated and the matter remanded to Civil Court for a new determination of the parties’ respective motions for summary judgment following an application by plaintiffs to the Workers’ Compensation Board to determine their rights under the Workers’ Compensation Law.
In this action to recover assigned first-party no-fault benefits, defendant’s submissions in support of its cross motion for summary judgment dismissing the complaint presented an issue of fact as to the applicability of the Workers’ Compensation Law to the subject loss, which defendant alleged occurred during the course of the assignor’s employment (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1991]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Therefore, resolution of the factual question presented on this record “is best suited for determination by the [Workers’ Compensation] Board, given its expertise in the area” (Arvatz, 171 AD2d at 269), and the parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Workers’ Compensation Board as to the applicability of the Workers’ Compensation Law to plaintiffs’ claim (see Botwinick, supra; Dunn, supra; LMK [*2]Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).
We note that, contrary to plaintiffs’ contention, Civil Court properly determined that defendant established that its denials were timely mailed within the prescribed 30-day period (see 11 NYCRR 65-3.8[a][1], [c]); cf. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: December 07, 2010
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Can a no-fault insurer deny or delay payment because workers’ compensation or another insurer is primary?
This decision: Workers' compensation may apply: the Board decides first and the no-fault claim waits
Held the insurer's submissions raised a factual issue whether the loss occurred in the course of employment, within the Board's primary jurisdiction, so the summary judgment motions should have been held in abeyance pending a Board determination.
Of the 9 decisions on this question in the First Department courts and the Court of Appeals, 3 (this one included) are in the same category. 5 decisions in other departments that cite or are cited by this one are on the full map.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the lower court properly found the insurer established that its denials were timely mailed within the 30-day period, contrary to the providers' contention.
Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 109 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dunn v American Tr. Ins. Co. (2010 NY Slip Op 01757)The Workers' Compensation Board has primary jurisdiction to resolve disputed employment status bearing on entitlement to workers' compensation benefits.
- Westchester Med. Ctr. v American Tr. Ins. Co. (2009 NY Slip Op 01979) Contrasted (cf., but see)The insurer's timely verification request and ensuing timely denial defeated the provider's motion for summary judgment.
- LMK Psychological Serv., P.C. v American Tr. Ins. Co. (2009 NY Slip Op 06004)The Workers' Compensation Board has primary jurisdiction to determine factual issues concerning workers' compensation coverage.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) Contrasted (cf., but see)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Cited by
A label shows how the later decision treated this one.
- AEE Med. Diagnostic, P.C. v Travelers Prop. Cas. Co. of Am. (2017 NY Slip Op 51209(U)) FollowedThe Workers' Compensation Board has primary jurisdiction over factual questions concerning coverage under the Workers' Compensation Law. The insurer's submissions, including the assignor's statement, raised triable issues whether the assignor was acting in the course of employment and whether workers' compensation benefits might be available.
- 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
- D.A.V. Chiropractic, P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51738(U))The 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))The insurer's evidence required the Workers' Compensation Board to resolve the assignor's alleged eligibility for workers' compensation benefits.
- Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))The insurer's conclusory peer review report failed to raise a triable issue concerning medical necessity.
- 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.
- Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52015(U))The insurer's appeal was untimely because its notice of appeal was not filed within 30 days after service of the order with notice of entry.