Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 11, 2016. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint, pursuant to CPLR 3211 (a) (8), on the ground that the Civil Court lacked personal jurisdiction over defendant. In several affidavits in support of the motion, defendant’s employees asserted that defendant is a Pennsylvania company, which is not licensed to do business in New York, maintains no offices in New York, has no agents operating out of, or representatives soliciting business in, New York, and does not own, use or possess any real property in New York. Furthermore, defendant argued that it had been held in prior cases that the courts in the State of New York cannot exercise personal jurisdiction over this defendant. Plaintiff opposed the motion with an affirmation by its counsel, who made unsupported assertions that defendant had transacted business in New York by knowingly issuing policies to New York drivers, and that defendant had established an ongoing relationship with defense counsel in New York, thereby subjecting defendant to jurisdiction in New York. Defendant’s attorney asserted in a reply affirmation that the arguments raised by plaintiff had been rejected by this court in Compas Med., P.C. v American Ind. Ins. Co. (47 Misc 3d 134[A], 2015 NY Slip Op 50481[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Defendant appeals from an order of the Civil Court entered August 11, 2016 denying defendant’s motion to dismiss the complaint.

Defendant made a prima facie showing that personal jurisdiction had not been obtained over it. “In opposing a motion to dismiss pursuant to CPLR 3211 (a) (8) on the ground of lack of personal jurisdiction, ‘a plaintiff need only make a prima facie showing that such jurisdiction exists’ ” (Hopstein v Cohen, 143 AD3d 859, 860 [2016], quoting Lang v Wycoff Hgts. Med. Ctr., [*2]55 AD3d 793, 798 [2008]). In the case at bar, the affirmation of plaintiff’s attorney was insufficient to demonstrate that personal jurisdiction over defendant existed under the Civil Court’s long-arm statute (see CCA 404 [a]), as plaintiff’s counsel failed to establish that he possessed personal knowledge of the facts.

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for appellant. The Rybak Firm, PLLC (Jessica Voto of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered June 3, 2015, deemed from a judgment of that court entered May 6, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 3, 2015 order granting plaintiff’s motion for summary judgment and implicitly denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $934.15.

ORDERED that the judgment is reversed, without costs, so much of the order as granted plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

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, arguing, among other things, that defendant had timely denied the claim on the ground that plaintiff’s assignor’s intoxication at the time of the accident at issue was the proximate cause of the accident. By order entered June 3, 2015, the Civil Court granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion. Defendant’s appeal from the June 3, 2015 order is deemed from a judgment that was entered on May 6, 2016 pursuant to the order (see CPLR 5501 [c]).

In opposition to plaintiff’s motion, defendant raised a triable issue of fact as to whether it had timely and properly denied the claim based on the alleged intoxication of plaintiff’s assignor, who was operating the vehicle at the time of the accident at issue (see Westchester Med. Ctr. v Mapfre Ins. Co. of NY, 119 AD3d 777 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]).

Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

Law Offices of Daniel J. Tucker (Daniel J. Tucker and Netanel BenChaim of counsel), for appellant. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered October 23, 2015. The order (1) denied defendant’s motion for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and, in the event that plaintiff fails to file proof of such an application to the Workers’ Compensation Board with the court within 90 days of the date of the court’s order, granting defendant summary judgment dismissing the complaint, and (2) granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is reversed, with $30 costs, defendant’s motion is granted to the extent that the matter shall 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, and, in the event that plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant summary judgment dismissing the complaint and deny plaintiff’s cross motion for summary judgment unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order staying the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law and, in the event plaintiff fails to file proof of such an application to the Workers’ Compensation Board with the court within 90 days of the date of the court’s order, granting defendant summary judgment dismissing the complaint. Defendant argued that plaintiff’s assignor had been injured during the course of his employment. Plaintiff cross-moved for summary judgment. By order entered October 23, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Defendant proffered sufficient evidence to support its contention that there was an issue as to whether plaintiff’s assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see e.g. Arce [*2]Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; 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 Dept, 2d, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). “Since primary jurisdiction with respect to determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board, ‘it is inappropriate for the courts to express views with respect thereto pending determination by the board’ ” (Monteiro v Rasraj Foods & Catering, Inc., 79 AD3d 827, 829 [2010], quoting Botwinick v Ogden, 59 NY2d 909, 911 [1983]). This issue must be resolved in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219 [1976]; Siekkeli v Mark Mariani, Inc., 119 AD3d 766 [2014]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-630 [2010]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]).

Plaintiff’s argument that it believes that Workers’ Compensation Law § 28 renders any claim for workers’ compensation benefits untimely in this case—because plaintiff’s assignor did not make an application for benefits within two years of the date of the accident—is unavailing, particularly where, as here, defendant demonstrated, and plaintiff did not deny, that defendant had timely denied plaintiff’s claim on the ground that plaintiff’s assignor was injured during the course of his employment.

Accordingly, the order is reversed, defendant’s motion is granted to the extent that the matter shall 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, and, in the event that plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant summary judgment dismissing the complaint and deny plaintiff’s cross motion for summary judgment unless plaintiff shows good cause why the complaint should not be dismissed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on June 8, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS