Ultimate Massage Therapy, P.C. v Utica Mut. Ins. Co. (2020 NY Slip Op 51613(U))

CV-704628-19/QU

Plaintiff’s Counsel:

Law Offices of Gabriel & Shapiro LLC

3361 Park Avenue, Suite 1000

Wantagh, NY 11793

Defendant’s Counsel:

Michael Seth Nightingale

100 Garden City Plaza, Suite 414

Garden City, NY 11530

I. Papers

The following papers were read on Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s complaint:

Papers Numbered

Defendant’s Notice of Motion and Affirmation in Support dated August 21, 2019 (“Motion“) and file stamped by the court on August 26, 2019. 1

Plaintiff’s Affirmation in Opposition dated and electronically filed with the court on November 23, 2020 (“Opposition“). 2

Defendant’s Reply Affirmation dated and electronically filed with the court on December 4, [*2]2020 (“Reply“). 3

II. Discussion and Decision

Defendant moved for summary judgment dismissing Plaintiff’s complaint on the ground that Workers Compensation insurance was primary and thus barred Plaintiff’s claim for No-Fault benefits. Plaintiff opposed Defendant’s motion for summary judgment.

“[P]rimary jurisdiction with respect to the determination as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board” (Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Dunn v American Tr. Ins. Co., 71 AD3d 629, 629-30 [2d Dept 2010], see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752, 754 [2d Dept 2009]). By moving for summary judgment dismissing Plaintiff’s complaint, Defendant asked this Court to determine the applicability of the Workers’ Compensation Law. In our instant matter, Defendant failed to support its contention regarding the applicability of the Workers’ Compensation Law with admissible evidence. Here, Defendant laid no foundation for the transcript of a recording of assignor’s unsworn statement, in which he admitted he was operating his employer’s vehicle for business purposes prior to the accident (see Motion, Aff. of Michael S. Nightingale, Ex. 2). The police accident report was also inadmissible because it was neither certified (Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691, 692 [2d Dept 2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2d Dept 2015]), nor sworn or supported with the affidavit of a witness with personal knowledge of the facts (LMS Med. Care v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] *1 [App Term 2d Dept 2011]).

Even had Defendant presented admissible evidence, the applicability of the Workers’ Compensation Law to this case must be resolved by the Workers’ Compensation Board (Compas Med., P.C. v American Tr. Ins. Co., 49 Misc 3d 146[A], 2015 NY Slip Op 51675[U] *1 [App Term 2d Dept 2015]; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY Slip Op 523761[U] *2 [App Term 2d Dept 2011]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] *2 [App Term 2d Dept 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] *2 [App Term 2d Dept 2010]). While Defendant cited Great Health Care Chiropractic, P.C. v Lancer Ins. Co. (42 Misc 3d 145[A], 2014 NY Slip Op 50340[U] *1 [App Term 2d Dept 2014]) to support its motion, that case further supports the Court’s conclusion. Accordingly, this Court must hold Defendant’s motion in abeyance pending an application to the Workers’ Compensation Board for determination of the parties’ rights under the Workers’ Compensation Law (Compas Med., P.C. v American Tr. Ins. Co., 2015 NY Slip Op 51675[U] *1; Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 2014 NY Slip Op 50340[U] *1; Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 2011 NY Slip Op 52371[U] *2; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51738[U] *2).

III. Order

Accordingly, it is

ORDERED that Defendant’s Motion for summary judgment is held in abeyance pending determination of the Workers’ Compensation Board of the applicability of the Workers’ Compensation Law to this case, and it is further

ORDERED that the parties shall advise the Court of the status of any determination of [*3]the Workers’ Compensation Board by June 1, 2021.

This constitutes the DECISION and ORDER of the Court.

Dated: April 30, 2021

Queens County Civil Court

_____________________________

Honorable Wendy Changyong Li, J.C.C.