Opinion
No. 2011–1854 Q C.
2013-04-8
ARCE MEDICAL & DIAGNOSTIC SVCE as Assignee of Harunur Khan, Appellant, v. AMERICAN TRANSIT INSURANCE COMPANY, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 2, 2011. The order granted defendant's motion to stay the action pending a determination of the Workers' Compensation Board of the parties' rights under the Workers' Compensation Law.
PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ.
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 of the Workers' Compensation Board of the parties' rights under the Workers' Compensation Law.
We agree with the Civil Court that defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was an issue as to whether plaintiff's assignor had been acting as an employee at the time of the accident, and that therefore workers' compensation benefits might be available ( see e.g. Jamaica Med. Supply, Inc. v. American Tr. Ins. Co., 34 Misc.3d 133[A], 2011 N.Y. Slip Op 52371[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; D.A.V. Chiropractic, P.C. v. American Tr. Ins. Co ., 29 Misc.3d 128[A], 2010 N.Y. 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 N.Y. Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Response Equip., Inc. v. American Tr. Ins. Co., 15 Misc.3d 145 [A], 2007 N.Y. Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]; cf. Westchester Med. Ctr. v. American Tr. Ins. Co., 60 AD3d 848 [2009] ). This issue must be resolved in the first instance by the Workers' Compensation Board (Board) ( see O'Rourke v. Long, 41 N.Y.2d 219, 225 [1976];see also Dunn v. American Tr. Ins. Co., 71 AD3d 629 [2010];Jamaica Med. Supply, Inc. v. American Tr. Ins. Co., 34 Misc.3d 133[A], 2011 N.Y. Slip Op 52371 [U]; AR Med. Rehabilitation, P.C. v. American Tr. Ins. Co., 27 Misc.3d 133 [A], 2010 N.Y. Slip Op 50708[U]; Response Equip., Inc. v. American Tr. Ins. Co., 15 Misc.3d 145[A], 2007 N.Y. Slip Op 51176[U] ).
In view of the foregoing, the Civil Court properly granted defendant's motion for a stay pending the Board's determination of the parties' rights under the Workers' Compensation Law ( see Dunn v. American Tr. Ins. Co., 71 AD3d 629;LMK Psychological Serv., P.C. v. American Tr. Ins. Co., 64 AD3d 752 [2009];see also Jamaica Med. Supply, Inc. v. American Tr. Ins. Co., 34 Misc.3d 133 [A], 2011 N.Y. Slip Op 52371[U] [holding, among other things, that in the event plaintiff failed to file proof with the motion court of an application to the Workers' Compensation Board within 90 days of the date of the Appellate Term's decision and order, defendant's cross motion for summary judgment would be granted unless plaintiff could show good cause why the complaint should not be dismissed]; D.A.V. Chiropractic, P.C. v. American Tr. Ins. Co., 29 Misc.3d 128[A], 2010 N.Y. Slip Op 51738[U] [same]; AR Med. Rehabilitation, P .C. v. American Tr. Ins. Co., 27 Misc.3d 133[A], 2010 N.Y. Slip Op 50708[U] [same] ).
Accordingly, the order of the Civil Court is affirmed.