December 30, 2009

Ortho Pro Labs, Inc. v American Tr. Ins. Co. (2009 NY Slip Op 52693(U))

Headnote

The relevant facts considered by the court were that in an action by a provider to recover assigned first-party no-fault benefits, the defendant had moved for summary judgment dismissing the complaint and the Civil Court had stayed the action pending an application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. The main issue was whether the defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether the plaintiff's assignor was injured while acting within the course of his employment. The holding of the court was that the defendant offered sufficient evidence based on the application for no-fault benefits form signed by the plaintiff's assignor under penalty of perjury which stated that the assignor was in the course of his employment when he was injured, thus raising a question of fact as to whether the assignor was acting as an employee at the time of the accident. Additionally, the court modified the order to provide that if the plaintiff fails to file proof of an application to the Workers' Compensation Board within 90 days, the defendant's motion for summary judgment dismissing the complaint will be granted unless the plaintiff shows good cause why the complaint should not be dismissed.

Reported in New York Official Reports at Ortho Pro Labs, Inc. v American Tr. Ins. Co. (2009 NY Slip Op 52693(U))

Ortho Pro Labs, Inc. v American Tr. Ins. Co. (2009 NY Slip Op 52693(U)) [*1]

Ortho Pro Labs, Inc. v American Tr. Ins. Co.

2009 NY Slip Op 52693(U) [26 Misc 3d 129(A)]

Decided on December 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2008-2171 Q C.

Ortho Pro Labs, Inc. as assignee of BARRY ALOUSSENY, Appellant,
against
American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered December 9, 2008. The order, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order is modified by adding thereto a provision that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.

The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “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 in the first [*2]instance by the [Workers’ Compensation] Board” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76-77 [App Term, 9th & 10th Jud Dists 2009] [citation omitted]; see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d & 11th Jud Dists 2008]; 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]). In light of the foregoing, plaintiff’s remaining contentions lack merit.

In addition to staying the action pending an application to the Workers’ Compensation Board, the Civil Court’s order should have provided that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers’ Compensation Board within 90 days, defendant’s motion for summary judgment dismissing the complaint is granted unless plaintiff shows good cause why the complaint should not be dismissed. We modify the order accordingly.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 30, 2009