February 28, 2014

Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (2014 NY Slip Op 50340(U))

https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-lancer-ins-co-2014-ny-slip-op50340u/

Court
Appellate Term, Second Department
Decided
February 28, 2014
Citation
2014 NY Slip Op 50340(U) · 42 Misc 3d 145(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Priority, other coverage
Cite as
Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 42 Misc 3d 145(A), 2014 NY Slip Op 50340(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 insurer raised a triable issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board. The provider sought summary judgment on assigned no-fault claims, while the insurer sought dismissal based on the assignor's alleged eligibility for workers' compensation benefits. The insurer supplied sufficient evidence that the assignor might have been acting in the course of employment when the accident occurred. Following O'Rourke v Long, that issue belonged before the Board in the first instance. The Appellate Term, Second Department, affirmed the order holding both motions in abeyance pending a Board application under the Workers' Compensation Law. It also found the insurer's failure to submit conformity certificates nonfatal in the circumstances.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (2014 NY Slip Op 50340(U))

[*1]
Great Health Care Chiropractic, P.C. v Lancer Ins. Co.
2014 NY Slip Op 50340(U) [42 Misc 3d 145(A)]
Decided on February 28, 2014
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014

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


PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-889 K C.
Great Health Care Chiropractic, P.C. as Assignee of DERRICK JEAN, Appellant,

against

Lancer Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. The order held in abeyance plaintiff’s motion for summary judgment and defendant’s motion for summary judgment dismissing the complaint, pending an application to the Workers’ Compensation Board to determine 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 moved for summary judgment dismissing the complaint based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. The Civil Court held both motions in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.

We agree with the Civil Court that defendant proffered sufficient evidence to support its contention that there was a triable 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 (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2013] 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], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010] 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 (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] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]). We find that, in the circumstances, defendant’s failure to submit certificates of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013] Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Fredette v Town of Southampton, 95 AD3d 940, 942 [2012] Francis v Allain, 21 Misc 3d 142[A], 2008 NY Slip Op 52386[U] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014

Similar decisions