Compas Med., P.C. v American Tr. Ins. Co.

[*1] Compas Med., P.C. v American Tr. Ins. Co. 2015 NY Slip Op 51675(U) Decided on November 13, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-992 Q C

Compas Medical, P.C. as Assignee of MASSE INNOCENT, Appellant, -

against

American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 21, 2013. The order denied plaintiff's motion for summary judgment and granted defendant's cross motion to stay the action pending a determination by the Workers' Compensation Board of the parties' rights under the Workers' Compensation Law.

ORDERED that the order is modified by striking the provision denying plaintiff's motion for summary judgment and by providing that plaintiff's motion is held in abeyance pending a determination by the Workers' Compensation Board of the parties' rights under the Workers' Compensation Law; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved to stay the action pending an application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits. The Civil Court denied plaintiff's motion and granted defendant's cross motion.

We agree with the Civil Court that 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 Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 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, 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, 11th & 13th Jud Dists 2010]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). Indeed, the application for no-fault benefits form, which was signed by plaintiff's assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. "Since primary jurisdiction with respect to determinations 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]). Consequently, the issue of whether plaintiff's assignor was acting as an employee at the time of the accident must be resolved 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], [*2]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]; Ortho Pro Labs, Inc. v American Tr. Ins. Co., 26 Misc 3d 129[A], 2009 NY Slip Op 52693[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is modified by striking the provision denying plaintiff's motion for summary judgment and by providing that plaintiff's motion is held in abeyance pending a determination by the Workers' Compensation Board of the parties' rights under the Workers' Compensation Law.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 13, 2015