A.B. Med. Servs., PLLC v American Tr. Ins. Co.
Annotate this CaseDecided on April 2, 2014
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 renewal of the branches of plaintiffs' motion seeking summary judgment on the complaint, except as to claims for the sums of $49.26, $188.16, and $101.10 (dates of service 11/2/06-11/9/06) for which plaintiffs had previously been awarded summary judgment, denied those branches of plaintiffs' motion and granted defendant's cross motion for summary judgment dismissing the remaining portion of 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 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 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, 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 [*2]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 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" (A.B. Med. Servs., PLC v American Tr. Ins. Co., 24 Misc 3d 127[A], 2009 NY Slip Op 51263[U], *1-2 [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 so much of their prior motion for summary judgment as had been denied. Defendant opposed plaintiffs' motion and cross-moved for summary judgment dismissing the remaining claims asserted in plaintiff's complaint pursuant to this court's June 18, 2009 order. By order dated December 7, 2010, the District Court, insofar as is relevant to this appeal, adhered to its prior determination denying summary judgment upon plaintiff's remaining claims and granted defendant's cross motion for summary judgment dismissing those remaining claims, 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 remaining claims asserted in plaintiff's complaint should not be dismissed, the order, insofar as appealed from, is affirmed.
The decision and order of this court dated August 6, 2012 (36 Misc 3d 142[A], 2012 NY Slip Op 51505[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).
Nicolai, P.J., and Iannacci, J., concur.
Molia, J., taking no part.
Decision Date: April 02, 2014
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