SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert A. Bruno, J.), entered July 21, 2008. The order, insofar as appealed from as limited by the brief, denied so much of plaintiff’s motion as sought summary judgment with respect to plaintiff’s claim for $1,572.26.

Order, insofar as appealed from, affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The District Court denied plaintiff’s motion, holding that the affidavit by plaintiff’s biller failed to establish a prima facie case because it did not demonstrate that the documents annexed to plaintiff’s motion were admissible as business records. The court also granted defendant’s cross motion for summary judgment as to plaintiff’s claim for $230.09 and denied defendant’s cross motion for summary judgment as to plaintiff’s claim for $1,572.26. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment with respect to the claim for $1,572.26.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Plaintiff’s remaining contentions are wholly without merit. Consequently, so much of plaintiff’s motion as sought [*2]summary judgment with respect to the claim for $1,572.26 was properly denied.

We decline defendant’s request to search the record and award it summary judgment dismissing the complaint as to the claim for $1,572.26 (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 25, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 18, 2007, deemed from a judgment of the same court entered September 12, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the May 18, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $911.99.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing that it denied plaintiff’s claim on the ground that no coverage existed since the policy benefits had been exhausted. In response, plaintiff argued that defendant failed to timely deny plaintiff’s claim and, in any event, defendant did not present admissible evidence establishing that the policy benefits were exhausted because the affidavit by defendant’s claims representative was executed before a Massachusetts notary public and there was nothing showing that it complied with CPLR 2309 (c). The Civil Court granted plaintiff’s motion for summary judgment, holding that defendant failed to proffer evidence establishing a triable issue of fact. The instant appeal by defendant ensued. A judgment was subsequently entered.

A “defendant’s failure to issue a denial of the claim within 30 days d[oes] not preclude a defense that the coverage limits of the subject policy have been exhausted” (New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579, 580 [2005] [internal quotations omitted]; see also Presbyterian Hosp. in City of NY v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]). However, the affidavit proffered by defendant, in which defendant’s claims representative asserted that the available coverage had been exhausted, was not in admissible [*2]form. Defendant’s affidavit was not in conformity with CPLR 2309 (c), which fact was duly objected to by plaintiff in the Civil Court (see Impulse Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., 19 Misc 3d 127[A], 2008 NY Slip Op 50498[U] [App Term, 2d & 11th Jud Dists 2008]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 17 Misc 3d 130[A], 2007 NY Slip Op 51981[U] [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant’s attorney’s affirmation was of no probative value since she did not establish that she had personal knowledge that the coverage limits of the policy had been exhausted. Consequently, defendant’s assertion of the exhaustion of available coverage was without any probative value.

Defendant’s remaining contention is unpreserved for appellate review and, in any event, lacks merit (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).
Accordingly, the judgment is affirmed.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum.

Golia, J., dissents and votes to reverse the judgment, vacate the order entered May 18, 2007 and deny plaintiff’s motion for summary judgment, in the following memorandum:

The majority decision here places form over substance and does not comport with the entire body of law as rendered by the Court of Appeals.

One of the pre-eminent cases in no-fault law is the Court of Appeals’ decision in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). The commonly held belief among many who are involved in no-fault law and litigation is that Chubb provides that a defendant will not be precluded from raising the defense of a “staged” accident despite having failed to deny the claim within 30 days. In actuality, however, there was no claim of a “staged” accident in Chubb. The defendant simply asserted that the assignor’s injuries were the result of a work-related accident and were therefore not covered by the automobile insurance policy in question. The Court of Appeals specifically held that despite the fact that the assignor was a covered person who was involved in an otherwise “covered” accident, there was a founded belief that her injuries were due to some other cause and were therefore not covered by the policy of insurance.

Indeed, Chubb relied heavily upon the prior Court of Appeals’ decision of Zappone v Home Ins. Co. (55 NY2d 131 [1982]). There, Mr. Zappone sent notice to the defendant Home Insurance Company that he had been in an automobile accident and was being sued by those injured in that accident. That notice sought coverage by the carrier in excess of the benefits being provided by the primary carrier. Home Insurance failed to disclaim coverage until some 15 months later, which unquestionably exceeded the mandates of subdivision 8 of section 167 of the Insurance Law.

The Court of Appeals was then confronted with applying a statute whose clear effect would result in directing an insurance carrier to provide coverage and reimbursement for which the carrier did not contract. The Court declined to do so and stated that,

“Literal interpretation of the words used will not be [*3]accorded when to do so will occasion great inconvenience, or produce inequality, injustice or absurdity. It is, moreover, always presumed that no unjust or unreasonable result was intended and the statute must be construed consonant with that presumption” (id. at 137 [citations omitted]).

Nevertheless, here the majority gives no weight to defendant’s attorney’s affirmation that effectively placed into issue whether, in accordance with the terms of the insurance contract, the assignor’s benefits had “maxed out”. Indeed, her affirmation refers to and incorporates certain documents pertaining to the fact that this claim is beyond the $8,000 monetary limit for no-fault benefits under the insurance contract at issue.

More specifically, that affirmation states that :
“The bill was denied because the policy benefits of $8,000.00 provided under the Massachusetts policy have been exhausted . . . [A]nnexed hereto as Exhibit B . . . [are] copies of the following:
Application for PIP Benefits indicating accident occurred in Massachusetts; printouts from carrier containing coverage information and portion of insurance policy providing for PIP coverage in the amount of $8,000.00; Payment History showing payout of benefits in the amount of $8,000.00″
These documents, coupled with the uncertified “affidavit” by Ms. Teixera, which was sworn to before a notary of our sister state of Massachusetts, in addition to the affirmation of the moving attorney, should certainly constitute a “founded belief” that this claim is not covered by the policy of insurance (see Weiss v Garfield, 21 AD2d 156 [1964] and the dissent in Ocean Diagnostic Imaging, P.C. v Lancer Ins. Co, 6 Misc 3d 62 [App Term, 2d & 11th Jud Dists 2004]). Indeed, even if it does not reach that level, then the lessons taught by Chubb and Zappone should still have mandated that plaintiff’s motion for summary judgment be denied.
Decision Date: June 23, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Alan L. Lebowitz, J.H.O.), entered October 30, 2007. The order, insofar as appealed from, denied plaintiff’s motion, inter alia, to compel the deposition of defendant and, in effect, granted the branch of defendant’s cross motion seeking a protective order.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion granted to the extent that defendant is ordered to appear for a deposition within 30 days of the order entered hereon and the branch of defendant’s cross motion seeking a protective order denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved, inter alia, for an order compelling the deposition of defendant and conditionally striking defendant’s answer or precluding defendant from offering evidence at trial in the event of defendant’s noncompliance. Defendant opposed the motion and cross-moved for an order compelling plaintiff to respond to defendant’s discovery demands and for a protective order. Insofar as is relevant to this appeal, the court denied plaintiff’s motion and, in effect, granted the branch of defendant’s cross motion seeking a protective order. This appeal by plaintiff ensued.

CPLR 3101 (a) provides for full disclosure of all matter “material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). In view of the foregoing, the order, insofar as appealed from, is reversed, plaintiff’s motion is granted to the extent of compelling defendant to appear for a deposition, and the branch of defendant’s cross motion seeking a protective order is denied (see Connely v Allstate Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51874[A] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I believe the decision should also note that the deposition of defendant by plaintiff should be held only after plaintiff completes defendant’s interrogatories as previously ordered by the court below.
Decision Date: June 23, 2009

[*1]

Supreme Court, Appellate Term, First Department, June 19, 2009

APPEARANCES OF COUNSEL

Law Offices of Teresa M. Spina & Edward Satran, Woodbury (Edward Satran of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola, for respondent.

{**24 Misc 3d at 44} OPINION OF THE COURT

Per Curiam.

Judgment, entered on or about February 15, 2007, affirmed, with $25 costs.

Plaintiff, a health services provider, commenced this action to recover first-party no-fault benefits for health services rendered to plaintiff’s assignor (Burgos), who was involved in a motor vehicle accident on August 4, 2003. At the time of the accident, Burgos was driving a rental car owned by nonparty Manhattan Ford Lincoln Mercury, Inc. and allegedly insured by nonparty Fidelity and Guaranty Insurance Company. Burgos’ insurer, defendant Government Employees Insurance Company (GEICO), denied plaintiff’s no-fault claim on the ground that no-fault benefits were payable by Fidelity. GEICO stipulated to plaintiff’s prima facie case and raised as its sole defense that it was not obligated to pay plaintiff’s claim since Burgos’ insured vehicle was not involved in the accident and the payment of first-party benefits was the sole responsibility of Fidelity, as Manhattan Ford’s insurer. After trial, the court awarded judgment to plaintiff, holding that GEICO’s objection to payment did not raise an issue of coverage, but rather one of priority of payment, which under Insurance Law § 5105 (b) and applicable regulations must be submitted to arbitration.

Civil Court properly determined that it could not adjudicate the threshold issue raised at trial by GEICO, viz., whether it or Fidelity was primarily responsible for the payment of the first-party benefits sought by plaintiff. Under Insurance Law § 5105 (b), arbitration shall be “utilized to resolve all disputes arising between insurers concerning their responsibility for the payment of first party benefits” (Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). GEICO’s argument that its denial of benefits raised an issue of coverage because it was not “otherwise liable” for the payment of first-party benefits (see 11 NYCRR 65-3[*2].12 [b]) is unavailing, since it ignores the endorsements contained in its own insurance policy, which expressly provided Burgos with rental and substitute{**24 Misc 3d at 45} automobile coverage. Where, as here, more than one insurance policy provides coverage for a no-fault claim, the issue becomes one of priority of payment. 11 NYCRR 65-4.11 (a) (6) pertinently provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority of payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” GEICO, as “the first insurer to whom notice of proof of claim [was] given” (11 NYCRR 65-3.12 [b]), was obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues relating to the priority or source of payment. Since GEICO denied payment of plaintiff’s claim on the stated ground that no-fault benefits were payable by Fidelity, its denial raised a question concerning the responsibility or obligation to pay first-party benefits, an inter-company dispute which must be resolved through mandatory arbitration (see Paramount Ins. Co. v Miccio, 169 AD2d 761 [1991]; Pacific Ins. Co. v State Farm, 150 AD2d at 456), not by way of a defense to plaintiff’s plenary no-fault action.

McKeon, P.J., and Heitler, J., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered June 11, 2008. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion, arguing, inter alia, that plaintiff’s supporting affidavit failed to establish that the annexed claim form constituted evidence in admissible form. The District Court denied plaintiff’s motion. Plaintiff appeals and we affirm.

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied. Accordingly, the order is affirmed.

Tanenbaum, J.P., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (David Goodsell, J.), entered April 7, 2008. The order granted defendant’s motion to dismiss the complaint and implicitly denied plaintiffs’ cross motion for summary judgment.Order reversed without costs, defendant’s motion to dismiss the complaint denied, plaintiffs’ cross motion for summary judgment granted and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by providers to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint and plaintiffs cross-moved for summary judgment. The District Court found that plaintiffs had established their prima facie entitlement to summary judgment, but granted defendant’s motion, finding that the court did not have jurisdiction over the issue of whether plaintiffs’ assignor was in the course of employment at the time of the accident. The court referred the matter to the Workers’ Compensation Board to make that determination. Plaintiffs appeal, arguing that defendant should be precluded from asserting this defense as a result of its failure to timely deny the claim and, as a result, that their motion for summary judgment should have been granted. [*2]

Since defendant raised no issue in the District Court with regard to plaintiffs’ prima facie case, we do not pass upon the propriety of the District Court’s determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant failed to allege, let alone establish, that its denial of claim form, which was dated February 21, 2005, two years after the services at issue were rendered, was timely mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2007]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2007]; Delta Diagnostic Radiology, P.C. v GEICO Ins. Co., 10 Misc 3d 145[A], 2006 NY Slip Op 50137[U] [App Term, 9th & 10th Jud Dists 2006]). Defendant is, therefore, precluded from asserting most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its only proffered defense, that plaintiffs’ assignor was acting as an employee at the time of the accident (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Accordingly, the order is reversed, plaintiffs’ motion for summary judgment is granted, and the matter is remitted to the District Court for the calculation of statutory
interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rudolph, P.J., Tanenbaum and Molia, JJ., concur.
Decision Date: June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered November 21, 2007. The order, insofar as appealed from, denied without prejudice plaintiffs’ motion for summary judgment and held the action in abeyance pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment, by providing that so much of plaintiffs’ motion as sought summary judgment upon claims for the sums of $49.26, $188.16, and $101.10 (dates of service 11/2/06-11/9/06) is granted and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon, and by remitting so much of plaintiffs’ motion as sought summary judgment with respect to the remaining claims to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny so much of plaintiffs’ motion as related to the remaining claims and grant reverse summary [*2]judgment in favor of defendant dismissing the complaint with respect to the remaining claims unless plaintiffs show good cause why the complaint with respect to the remaining claims should not be dismissed. As so modified, order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board (Board). The District Court denied the motion and cross motion without prejudice, and held the action in abeyance pending a determination by the Board, finding that there were mixed questions of law and fact regarding the availability of workers’ compensation benefits, over which the Board had primary jurisdiction. Plaintiffs appeal from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance.

Since the defense of the assignor’s eligibility for workers’ compensation benefits is subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant was required to demonstrate that it timely denied plaintiffs’ claims on said ground within 30 days of their receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [a]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). With respect to plaintiffs’ claims for $49.26, $188.16 and $101.10 (dates of service 11/2/06-11/9/06), the record indicates that defendant did not deny said claims within the 30-day determination period. Defendant was, therefore, precluded from raising its defense of workers’ compensation eligibility as to said claims. Consequently, so much of plaintiffs’ motion as sought summary judgment with respect to the aforementioned claims is granted, and these claims are remitted to the District Court for a calculation of statutory interest and an assessment of attorney’s fees thereon.

The remaining claims were timely denied based on the assignor’s alleged eligibility for workers’ compensation benefits. For the reasons stated in A.B. Med. Servs., PLLC a/a/o Wilkens LaGuerre v Amer. Tr. Ins. Co. ( Misc 3d , 2009 NY Slip Op [No. 2008-281 N C], decided herewith), so much of plaintiffs’ motion seeking summary judgment with respect to these claims is remitted to the District Court to be held in abeyance pending a prompt application to the Board, as set forth above.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Robert H. Spergel, J.), dated September 4, 2007, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the September 4, 2007 order granting plaintiffs’ motion for summary judgment, awarded plaintiffs the sum of $19,357.03.

Judgment reversed without costs, order dated September 4, 2007 granting plaintiffs’ motion for summary judgment vacated, and plaintiffs’ motion for summary judgment denied.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition to the motion, defendant argued, inter alia, that the affidavit of plaintiffs’ employee failed to lay a proper foundation for the admission of the documents attached to plaintiffs’ moving papers as business records pursuant to CPLR 4518 (a), and that the matter should be held in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. By order dated September 4, 2007, the District Court granted plaintiffs’ motion for summary judgment. A judgment awarding plaintiff the sum of $19,357.03 was entered on September 11, 2007. Defendant subsequently appealed from the September 4, 2007 order, which appeal we [*2]deem to be from the judgment (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

To the extent that defendant sought to have the District Court search the record and hold the matter in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law, the papers that defendant submitted in opposition to plaintiffs’ motion for summary judgment did not establish sufficient facts to warrant such relief (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]).

Plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008], Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiffs’ motion for summary judgment should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiffs’ motion for summary judgment is vacated, and the motion is denied.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 2009

[*1]

Supreme Court, Appellate Term, Second Department, June 18, 2009

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Daniel J. Tucker, New York City, and Thomas Torto, New York City, for respondent.

{**24 Misc 3d at 76} OPINION OF THE COURT

Memorandum.

Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment and by remitting plaintiffs’ motion to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed. As so modified, order, insofar as appealed from, affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs’ claims [*2]based upon the assignor’s eligibility for workers’ compensation benefits, and that there was an issue as to whether plaintiffs’ assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers’ Compensation Board. The District Court denied the motion and cross motion without prejudice and held the action in abeyance pending a determination by the Board, finding that there were mixed questions of law and fact regarding the availability of workers’ compensation benefits, over which the Board had primary jurisdiction. Plaintiffs appeal from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance.

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 (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]), which issue must be resolved in the first instance by the Board (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{**24 Misc 3d at 77} 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]; cf. A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiffs’ motion should not have been denied without prejudice but, rather, held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law.

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 29, 2008, deemed from a judgment of the same court entered June 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 29, 2008 order granting defendant’s motion to dismiss, dismissed the complaint.

Judgment affirmed without costs.

Plaintiffs commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for injuries their assignor sustained in a motor vehicle accident on June 24, 2003, on the ground that payment of said benefits was overdue. A wholly owned subsidiary of defendant subsequently commenced a Supreme Court action against plaintiffs herein, as well as others, in which it alleged that the same June 2003 accident was staged, and sought a declaratory judgment that there was no coverage as to any claim for first-party no-fault benefits and, thus, that it was not required to defend or indemnify its insured. In June 2007, the Supreme Court awarded judgment to the plaintiff therein on default. In April 2008, defendant herein moved to dismiss the instant complaint, arguing that this action was barred by virtue of the Supreme Court order. The Civil Court granted defendant’s motion. The instant appeal by plaintiffs ensued. A judgment dismissing the complaint was subsequently entered.

The doctrines of res judicata and collateral estoppel are designed to put an end to a matter once it is duly decided (see Siegel, NY Prac § 442, at 747 [4th ed]). Res judicata, or claim [*2]preclusion, is invoked when a party, or one in privity with the party, seeks to relitigate a disposition on the merits of claims, or causes of action, arising out of the same, or series of, transactions which were raised, or could have been raised, in the prior action (see Matter of Hunter, 4 NY3d 260, 269 [2005]; Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Res judicata applies “when a different judgment in the second [action] would destroy or impair rights or interests established by the first” (id. at 306-307).

Clearly, the determination as to whether there was coverage is crucial to both plaintiffs and defendant herein, and arises out of the same transaction, i.e., the subject accident (see e.g. Abraham v Hermitage Ins. Co., 47 AD3d 855 [2008]; Sabatino v Capco Trading, Inc., 27 AD3d 1019, 1020 [2006]), and a different judgment in the instant action would destroy or impair rights or interests established by the Supreme Court judgment (see e.g. Schuykill Fuel Corp., 250 NY at 306-307). Moreover, the record establishes that defendant and the wholly owned subsidiary had the requisite privity (see e.g. Spasiano v Provident Mut. Life Ins. Co., 2 AD3d 1466 [2003]). Consequently, plaintiffs were barred from relitigating the claim pursuant to the doctrine of res judicata. Plaintiffs’ remaining contentions have no merit or are unpreserved for appellate review. Accordingly, defendant’s motion was properly granted, and the order is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 12, 2009