March 26, 2021

Active Care Med. Supply Corp. v Global Liberty Ins. (2021 NY Slip Op 50257(U))

Headnote

The Appellate Court considered the case of Active Care Medical Supply Corp. v. Global Liberty Insurance, in which the plaintiff was seeking to recover assigned first-party no-fault benefits. The issue before the court was whether the Worker's Compensation was primary in determining the liability for the benefits. After a nonjury trial, the court found in favor of the plaintiff, ruling that the defendant's certified transcript of an examination under oath of the plaintiff's assignor was not admissible based on law of the case. The defendant then moved to set aside the decision and for a new trial, pursuant to CPLR 4404, but this was denied by the Civil Court. The Appellate Court reversed the decision of the Civil Court, holding that it should have considered the certified EUO transcript to determine whether the defendant had proffered sufficient evidence to support its contention that there was an issue as to whether the plaintiff's assignor had been acting in the course of his employment at the time of the accident. Therefore, the defendant's motion for a new trial was granted.

Reported in New York Official Reports at Active Care Med. Supply Corp. v Global Liberty Ins. (2021 NY Slip Op 50257(U))

Active Care Med. Supply Corp. v Global Liberty Ins. (2021 NY Slip Op 50257(U)) [*1]

Active Care Med. Supply Corp. v Global Liberty Ins.

2021 NY Slip Op 50257(U) [71 Misc 3d 129(A)]

Decided on March 26, 2021

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2021

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-835 K C

Active Care Medical Supply Corp., as Assignee of Jayasinghe, Shelton, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), dated March 7, 2019. The order denied defendant’s motion, pursuant to CPLR 4404, to set aside a decision of the Civil Court made after a nonjury trial and for a new trial.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion, pursuant to CPLR 4404, to set aside the decision of the Civil Court and for a new trial is granted.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held which, pursuant to a prior order, was limited to the issue of “whether Worker[s’] Compensation is primary.” After the trial, upon finding that defendant’s certified transcript of an examination under oath (EUO) of plaintiff’s assignor was not admissible based on law of the case, the court found in favor of plaintiff. Defendant moved, pursuant to CPLR 4404 (b), to set aside the decision and for a new trial. Defendant appeals from an order of the Civil Court dated March 7, 2019 denying its motion.

We find that the Civil Court should have considered the certified EUO transcript to determine whether defendant had 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” (Quality Health Prod., Inc. v American Tr. Ins. Co., 65 Misc 3d 155[A], 2019 NY Slip Op 51950[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is reversed and defendant’s motion, pursuant to CPLR 4404, to set aside the decision of the Civil Court and for a new trial is granted.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 26, 2021