April 4, 2013
Parkway Pain Mgt., PLLC v American Tr. Ins. Co. (2013 NY Slip Op 50521(U))
https://www.beynensonlaw.com/case-law/parkway-pain-mgt-pllc-v-american-tr-ins-co-2013-ny-slip-op50521u/
- Decided
- April 4, 2013
- Citation
- 2013 NY Slip Op 50521(U) · 39 Misc 3d 133(A)
- Posture
- Other motion
- Outcome
- Insurer prevailed
- Legal questions
- Workers' comp or other insurer primary (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 Parkway Pain Mgt., PLLC v American Tr. Ins. Co. (2013 NY Slip Op 50521(U))
| Parkway Pain Mgt., PLLC v American Tr. Ins. Co. |
| 2013 NY Slip Op 50521(U) [39 Misc 3d 133(A)] |
| Decided on April 4, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-885 Q C.
against
AMERICAN TRANSIT INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 3, 2011. The order granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of 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 appeals from an order of the Civil Court which granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.
We find that defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Pilku v 24535 Owners Corp., 19 AD3d [*2]722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; 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]; see also 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]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contention lacks merit.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 04, 2013
Legal questions
A question 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
Affirmed a stay pending the Board's determination because the insurer's proof, including the police accident report, raised a question of fact whether the assignor was acting as an employee, which the Board must resolve.
Of the 69 decisions on this question in the Second Department courts and the Court of Appeals, 33 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U)) FollowedThe Workers' Compensation Board must resolve whether the assignor was acting as an employee when the accident occurred.
- D.A.V. Chiropractic, P.C. v American Tr. Ins. Co. (2010 NY Slip Op 51738(U)) FollowedThe 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)) FollowedThe insurer's evidence required the Workers' Compensation Board to resolve the assignor's alleged eligibility for workers' compensation benefits.
Similar decisions
- Arce Med. & Diagnostic Svce v American Tr. Ins. Co. (2013 NY Slip Op 50531(U))The insurer obtained a stay because admissible evidence raised an issue whether the assignor was eligible for workers' compensation benefits.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51192(U))The insurer's evidence raised an issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board.
- Active Care Med. Supply Corp. v American Tr. Ins. Co. (2019 NY Slip Op 50419(U))The Workers' Compensation Board must first resolve eligibility when evidence raises an issue whether the assignor was injured in the course of employment.
- 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.
- Quality Health Prod., Inc. v American Tr. Ins. Co. (2019 NY Slip Op 51950(U))The insurer established an employment-related coverage issue requiring an initial determination by the Workers' Compensation Board.