A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 50959(U))

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (E. Spodek, J.), entered June 21, 2004, as denied their motion for summary judgment. Cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is granted and matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits for medical services provided their assignor, plaintiffs established their prima facie entitlement to summary judgment by evidentiary proof that they submitted statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant insurer timely rejected the claims on the sole ground that at the time of the accident, assignor was acting in the course of his employment, mandating that plaintiffs pursue their compensation claim before the Workers’ Compensation Board (Board). Plaintiffs, alleging that the accident was not employment-related, moved for summary judgment, whereupon defendant cross-moved for summary judgment.

In our view, the insurer failed to establish the defense’s “potential merit” so as to warrant Board review of the facts (Lanpont v Savvas Cab Corp., 244 AD2d 208, 210 [1997]; see Alvarez [*2]v Prospect Hosp., 68 NY2d 320, 324 [1986]). As against plaintiffs’ proof, inter alia, assignor’s sworn statement that he was not working when the accident occurred and a sworn statement by his purported employer that assignor “was not
working on December 12, 2001″ (and necessarily, that assignor was not en route to or from work at the time of the incident [Baughman v Merchants Mut. Ins. Co., 213 AD2d 1030 (1995)]), defendant interposed only a claims adjuster’s assertion that defendant had “made the determination that the claimant was eligible for Workers’ Compensation” which in turn was based solely on an employer’s unsworn statement dated 18 months before the accident and a police accident report, offered for the first time in defendant’s reply papers below, which will not be considered by this Court (e.g. Johnston v Continental Broker-Dealer Corp., 287 AD2d 546 [2001]; Azzopardi v American Blower Corp., 192 AD2d 453 [1993]). Thus, defendant’s claim that assignor acted in the course of his employment at the time of the accident was “mere speculation” (Anarumo v Terminal Constr. Corp., 143 AD2d 616, 617 [1988]) and failed to establish any issues of fact regarding Workers’ Compensation coverage that must be resolved by the Board (see Lanpont, 244 AD2d at 210 [“Workers’ Compensation defense” successfully interposed where “(s)ufficient facts appear in the record to demonstrate the (defense’s) potential merit”]). Accordingly, the order below should be modified to grant plaintiffs summary judgment and the matter remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees as authorized by Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: June 09, 2005