Parkway Pain Mgt., PLLC v American Tr. Ins. Co. (2013 NY Slip Op 50521(U))

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 3, 2011. The order granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion to stay the action pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

We find that defendant’s proof, including the police accident report, was sufficient to raise a question of fact as to whether plaintiff’s assignor had been acting as an employee at the time of the accident, which issue must be resolved by the Workers’ Compensation Board (O’Rourke v Long, 41 NY2d 219, 224 [1976]; Matter of Pilku v 24535 Owners Corp., 19 AD3d [*2]722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; 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]; see also D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 04, 2013