A.B. Med. Servs., PLLC v American Tr. Ins. Co.

[*1] A.B. Med. Servs., PLLC v American Tr. Ins. Co. 2012 NY Slip Op 51505(U) Decided on August 6, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., MOLIA and IANNACCI, JJ
2011-685 N C.

A.B. Medical Services, PLLC, LVOV ACUPUNCTURE, P.C. and RW HEALTH PLUS CHIROPRACTIC, P.C. as Assignees of FELIX ZORRILLA, Appellants,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), dated December 7, 2010. The order, insofar as appealed from, upon granting the branch of plaintiffs' motion seeking leave to renew their prior motion for summary judgment, denied the branch of plaintiffs' motion seeking summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is 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 had been 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 [*2]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 appealed from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance. By decision and order dated June 18, 2009, this court modified the District Court's order "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" (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76 [App Term, 9th & 10th Jud Dists 2009]; see LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Thereafter, plaintiffs moved for, among other things, leave to renew their prior motion for summary judgment. Defendant opposed plaintiffs' motion and cross-moved for summary judgment dismissing the complaint pursuant to this court's June 18, 2009 decision and order. By order dated December 7, 2010, the District Court, upon granting the branch of plaintiffs' motion seeking leave to renew their prior motion, denied the branch of plaintiffs' motion seeking summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, finding that a proper application to the Board, pursuant to this court's June 18, 2009 order, had not been made.

Since plaintiffs did not demonstrate that a proper application for workers' compensation benefits had been made in accordance with the Workers' Compensation Law (see e.g. Workers' Compensation Law § 33) within the time provisions set forth in this court's order dated June 18, 2009, and they otherwise did not show good cause why the complaint should not be dismissed, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: August 06, 2012