October 30, 2008
Infinity Health Prods., Ltd. v New York City Tr. Auth. (2008 NY Slip Op 52218(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-new-york-city-tr-auth-2008-ny-slip-op-52218u/
- Court
- Appellate Term, Second Department
- Decided
- October 30, 2008
- Citation
- 2008 NY Slip Op 52218(U) ยท 21 Misc 3d 136(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- Priority, other coverage
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 Infinity Health Prods., Ltd. v New York City Tr. Auth. (2008 NY Slip Op 52218(U))
[*1]| Infinity Health Prods., Ltd. v New York City Tr. Auth. |
| 2008 NY Slip Op 52218(U) [21 Misc 3d 136(A)] [21 Misc 3d 136(A)] |
| Decided on October 30, 2008 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : GOLIA, J.P., RIOS and STEINHARDT, JJ
2007-1513 Q C.
against
New York City Transit Authority, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J.
Esposito, J.), entered April 3, 2007, deemed from a judgment of the same court entered
September 7, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment,
entered pursuant to the April 3, 2007 order granting plaintiff’s motion for summary judgment,
awarded plaintiff the sum of $2,687.07.
Judgment reversed without costs, order entered April 3, 2007 granting plaintiff’s motion for summary judgment vacated, and matter remanded to the court below for a new determination of the motion with the direction that the court hold the matter in abeyance pending a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.
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 there was an issue as to whether the assignor was injured during the course of her employment thereby requiring that the matter be submitted to the Workers’ Compensation Board. By order entered April 3, 2007, the court below found that there was no indication that the “assignor was an employee of any employer required to provide workers[‘] compensation coverage,” and granted plaintiff’s motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued. [*2]
We find that defendant’s proof was sufficient to raise a
question of fact as to whether the assignor was acting as an employee at the time of the accident,
which issue must be resolved by the Workers’ Compensation Board (see O’Rourke v
Long, 41 NY2d 219, 225 [1976]; Matter of Pilku v 24535 Owners Corp., 19 AD3d 722, 723 [2005];
Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also 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]). Accordingly,
the judgment is reversed, the order is vacated, and the matter is remanded to the court below for a
new determination of the motion with the direction that the court hold the matter in abeyance
pending a prompt
application to the Workers’ Compensation Board for a determination of the parties’ rights
under the Workers’ Compensation Law (see Botwinick v Ogden, 59 NY2d 909, 911
[1983]; Acunto v Stewart Ave. Gardens,
LLC, 26 AD3d 305, 305 [2006]).
Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008
Cited in this decision
- Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U))The Workers' Compensation Board must resolve whether the assignor was acting as an employee when the accident occurred.
Cited by
- 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.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 29271)The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution.
- 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.
- 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.
- Mani Med., P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51185(U))The insurer established an excuse for its default and an arguably meritorious workers' compensation defense warranting vacatur.
- B.Y., M.D., P.C. v Global Liberty Ins. Co. of N.Y. (2012 NY Slip Op 50156(U))The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution.
Similar decisions
- Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.
- Infinity Health Prods., Ltd. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51497(U))The insurer established timely mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, the Civil Court denied the insurer's cross motion for summary judgment, leaving the IME nonappearance defense for trial.
- Infinity Health Prods. v Amex Assur. Co. (2008 NY Slip Op 51233(U))The provider's billing manager's affidavit failed to establish a business-records foundation for its summary judgment documents.
- 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.
- Infinity Health Prods., Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51612(U))The insurer's investigator's affidavit raised a triable issue as to whether the assignor's injuries arose from an insured incident.