November 1, 2019

Y.A.M. Med. Supply, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51801(U))

Headnote

The court considered the facts in a case where a provider was seeking to recover first-party no-fault benefits assigned to them. The main issue decided was whether the defendant's cross motion to hold the action in abeyance pending a determination by the Workers' Compensation Board of the parties' rights under the Workers' Compensation Law should be granted. The holding of the court was that the defendant's defense that the assignor is eligible for workers' compensation benefits is subject to preclusion, as they failed to demonstrate that they had timely denied the plaintiff's claims on the ground that the assignor was injured in the course of his employment. As a result, the defendant's cross motion was properly denied and the order was affirmed.

Reported in New York Official Reports at Y.A.M. Med. Supply, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51801(U))

Y.A.M. Med. Supply, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51801(U)) [*1]

Y.A.M. Med. Supply, Inc. v Global Liberty Ins. Co. of NY

2019 NY Slip Op 51801(U) [65 Misc 3d 147(A)]

Decided on November 1, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1176 K C

Y.A.M. Medical Supply, Inc., as Assignee of Kallamni Hicham, Respondent,
against
Global Liberty Ins. Co. of NY, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Douglas Mace of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 17, 2018. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion seeking to hold the action in abeyance pending a determination by the Workers’ Compensation Board of the parties’ rights under the Workers’ Compensation Law.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved to hold the action in abeyance pending an application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law based upon plaintiff’s assignor’s alleged eligibility for workers’ compensation benefits. By order entered May 17, 2018, insofar as is relevant, the Civil Court denied defendant’s cross motion. Defendant appeals.

The defense that the assignor is eligible for workers’ compensation benefits is subject to preclusion (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). As defendant failed to demonstrate that it had timely denied plaintiff’s claims on the ground that the [*2]assignor was injured in the course of his employment (see 11 NYCRR 65-3.5 [a]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), defendant’s cross motion was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 01, 2019