Daily Med. Equip. Distrib. Ctr., Inc. v Global Liberty Ins.

[*1] Daily Med. Equip. Distrib. Ctr., Inc. v Global Liberty Ins. 2017 NY Slip Op 51710(U) Decided on December 8, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1712 K C

Daily Medical Equipment Distribution Center, Inc., as Assignee of Mendoza, Juan, Appellant,

against

Global Liberty Insurance, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 21, 2014. The order held defendant's motion for summary judgment dismissing the complaint in abeyance pending an application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law.

ORDERED that the appeal is dismissed.

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

The order appealed from did not decide defendant's motion but instead, as noted, held the motion in abeyance pending a determination by the Workers' Compensation Board as to whether plaintiff's assignor had been acting in the course of his employment at the time of the accident and whether, therefore, workers' compensation benefits might be available (see O'Rourke v Long, [*2]41 NY2d 219 [1976]). Thus, the order is not appealable as of right (see CPLR 5701 [a] [2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305 [2006]) and, under the circumstances, we decline to grant leave to appeal.

Accordingly, the appeal is dismissed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017