Opinion
No. 2013–992QC.
11-13-2015
COMPAS MEDICAL, P.C. as Assignee of Masse Innocent, Appellant, v. AMERICAN TRANSIT INS. CO., Respondent.
Opinion
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 N.Y. 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 N.Y. 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 N.Y. 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 N.Y.2d 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 N.Y.2d 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], 2011 N.Y. Slip Op 52371[U]; D.A.V. Chiropractic, P.C. v. American Tr. Ins. Co., 29 Misc.3d 128[A], 2010 N.Y. Slip Op 51738[U]; Ortho Pro Labs, Inc. v. American Tr. Ins. Co., 26 Misc.3d 129[A], 2009 N.Y. 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.