Opinion
2008-2171 Q C.
Decided December 30, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Carolyn E. Wade, J.), entered December 9, 2008. The order, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law.
ORDERED that the order is modified by adding thereto a provision that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers' Compensation Board within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant's motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed; as so modified, the order is affirmed without costs.
PRESENT: WESTON, J.P., GOLIA and STEINHARDT, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff's assignor was injured while acting within the course of his employment.
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. . ., which issue must be resolved in the first instance by the [Workers' Compensation] Board" ( A.B. Med. Servs., PLLC v American Tr. Ins. Co. , 24 Misc 3d 75 , 76-77 [App Term, 9th 10th Jud Dists 2009] [citation omitted]; see O'Rourke v Long, 41 NY2d 219, 225; Santigate v Linsalata, 304 AD2d 639, 640; see also Infinity Health Prods., Ltd. v New York City Tr. Auth. , 21 Misc 3d 136[A], 2008 NY Slip Op 52218[U] [App Term, 2d 11th Jud Dists 2008]; Response Equip., Inc. v American Tr. Ins. Co. , 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d 11th Jud Dists 2007]). In light of the foregoing, plaintiff's remaining contentions lack merit.
In addition to staying the action pending an application to the Workers' Compensation Board, the Civil Court's order should have provided that in the event plaintiff fails to file proof with the Civil Court of an application to the Workers' Compensation Board within 90 days, defendant's motion for summary judgment dismissing the complaint is granted unless plaintiff shows good cause why the complaint should not be dismissed. We modify the order accordingly.
Weston, J.P., Golia and Steinhardt, JJ., concur.