B.Y., M.D., P.C. v American Tr. Ins. Co.

[*1] B.Y., M.D., P.C. v American Tr. Ins. Co. 2010 NY Slip Op 51902(U) [29 Misc 3d 132(A)] Decided on November 8, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., TANENBAUM and LaCAVA, JJ
2009-2027 N C.

B.Y., M.D., P.C., OASIS PHYSICAL THERAPY, P.C., JR CHIROPRACTIC, P.C., OLGA BARD ACUPUNCTURE, P.C. and CITY CARE ACUPUNCTURE, P.C. as Assignees of AHMED A. MOHAMMED, Appellants,

against

American Transit Insurance Co., Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Gary Franklin Knobel, J.), dated July 6, 2009. The order denied plaintiffs' motion for summary judgment and held defendant's cross motion for summary judgment dismissing the complaint in abeyance pending plaintiffs' submission of an amended complaint.

ORDERED that the order is reversed, without costs, and plaintiffs' motion and defendant's cross motion are remitted 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 defendant's cross motion dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

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 plaintiffs' motion on the ground that plaintiffs' complaint was insufficient pursuant to CPLR 3013 and 3014. The court ordered plaintiffs to submit an amended complaint, and held defendant's cross motion in abeyance pending such resubmission. The instant appeal by plaintiffs ensued.

Defendant's proof was sufficient to raise a question of fact as to whether plaintiffs' assignor was acting as an employee at the time of the accident (cf. Westchester Med. Ctr. v [*2]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]; A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order is reversed and plaintiffs' motion and defendant's cross motion are remitted to the District Court to be 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.

We note that, while the claims of the five plaintiffs were pleaded under one cause of action in the complaint, the specific claims and amounts sought to be recovered by the individual plaintiffs were stated separately as to each of the plaintiffs (see A.B. Med. Servs. PLLC v State-Wide Ins. Co., 2005 NY Slip Op 50785[U] [App Term, 2d & 11th Jud Dists 2005]).

Molia, J.P., Tanenbaum and LaCava, JJ., concur.
Decision Date: November 08, 2010