December 13, 2019

Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 52053(U))

Headnote

The court considered the fact that plaintiff, as an assignee of the injured party, had filed a motion for summary judgment to recover assigned first-party no-fault benefits, while the defendant argued that the assignor had been injured during the course of employment. The main issue decided was whether the plaintiff had complied with a prior order requiring them to make a proper application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law. The holding of the case was that since the plaintiff did not demonstrate compliance with the prior order, the order granting the defendant's motion for summary judgment and denying the plaintiff's cross motion was affirmed. Additionally, the argument made by the plaintiff that Workers' Compensation Law § 28 rendered any claim for workers' compensation benefits untimely was deemed unavailing.

Reported in New York Official Reports at Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 52053(U))

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

Compas Medical, P.C., as Assignee of Florvel, Joseph, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Daniel J. Tucker, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered May 1, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff’s assignor had been injured during the course of employment. By order entered June 10, 2014, the Civil Court granted defendant’s cross motion to the extent of holding the matter in abeyance for 90 days pending the filing of an application to the Workers’ Compensation Board (Board). The court further stated that if plaintiff failed to file proof of such application with the court, defendant’s cross motion for summary judgment dismissing the complaint would be granted.

Defendant subsequently moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to comply with the Civil Court’s prior order in that plaintiff had not filed an application with the Board. Plaintiff cross-moved for summary judgment. By order entered May 1, 2018, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Since plaintiff did not demonstrate that it had complied with the Civil Court’s June 10, 2014 order requiring plaintiff to make a proper application to the Board to determine the parties’ rights under the Workers’ Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]), the order entered May 1, 2018 is affirmed.

To the extent that plaintiff argues that it believes that Workers’ Compensation Law § 28 [*2]renders any claim for workers’ compensation benefits untimely in this case—because plaintiff’s assignor did not make an application for benefits within two years of the date of the accident—such argument is unavailing, particularly where, as here, defendant demonstrated, and plaintiff did not deny, that defendant had timely denied plaintiff’s claim on the ground that plaintiff’s assignor was injured during the course of his employment (see New Millennium Radiology, P.C. v American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019