June 8, 2007

Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U))

Headnote

The court considered the fact that Respondent, Response Equipment, Inc., was seeking to recover assigned first-party no-fault benefits on claims submitted for Hypolite Francis. The main issue decided was whether Francis was acting as an employee at the time of the accident, as this would require the plaintiff to pursue a compensation claim before the Workers' Compensation Board. The court held that the defendant's proof, including the police accident report, raised a question of fact as to whether Francis was acting as an employee, and this issue must be resolved by the Workers' Compensation Board. Therefore, the order was reversed, and the matter was remanded to the court below with the direction to 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.

Reported in New York Official Reports at Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U))

Response Equip., Inc. v American Tr. Ins. Co. (2007 NY Slip Op 51176(U)) [*1]

Response Equip., Inc. v American Tr. Ins. Co.

2007 NY Slip Op 51176(U) [15 Misc 3d 145(A)]

Decided on June 8, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2006-481 K C.

Response Equipment, Inc. a/a/o Simeon Ernst, Hypolite Francis, Lundy Nikea and Angela Vaciraca, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 4, 2006. The order granted plaintiff’s motion for partial summary judgment with respect to the cause of action on behalf of assignor Hypolite Francis and denied defendant’s cross motion for partial summary judgment with respect to the cause of action on behalf of said assignor.

Order reversed without costs and matter remitted to the Civil Court, Kings County and held in abeyance for a new determination of the motion and cross motion following 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 partial summary judgment in the sum of $1,454,98 on the claims submitted with respect to Hypolite Francis and defendant cross-moved for partial summary judgment dismissing those claims, inter alia, on the ground that at the time of the accident, Francis was acting in the course of his employment, requiring that plaintiff pursue its compensation claim before the Workers’ Compensation Board. The court granted plaintiff’s motion for partial summary judgment and denied defendant’s cross motion. Defendant’s appeal ensued. [*2]

We find defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether Francis was 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 Piku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Accordingly, the order is reversed and the matter remanded to the court below 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 (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006]).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: June 8, 2007