In re Sele. Ins. v. N. Y. State Workers' Compen.

Full title: IN THE MATTER OF THE APPLICATION OF SELECTIVE INSURANCE COMPANY OF…

Court: Supreme Court of the State of New York, New York County

Date published: Dec 6, 2010

2010 N.Y. Slip Op. 33374 (N.Y. Sup. Ct. 2010)

Opinion

101657/10.

December 6, 2010.

Decision, Order and Judgment

MARTIN SHULMAN, Judge.

Petitioner Selective Insurance Company of America ("Selective" or "petitioner") brings this CPLR Article 78 proceeding against respondents New York State Workers' Compensation Board ("WCB" or "Board"), New York City Transit Authority ("NYCTA") and Dante Cruz ("Cruz") seeking an order of mandamus directing the WCB to: 1) re-open Cruz's workers' compensation claim (WCB No. 00358563)¹; 2) hold an expedited hearing to determine if injuries Cruz sustained in an auto accident on or about September 22, 2003 (the "accident") occurred during the course of Cruz's employment with NYCTA; 3) subpoena Cruz to compel his appearance at such a hearing; and 4) permit Selective to participate at the hearing. The WCB and NYCTA oppose the relief sought, having interposed separate answers containing various objections in point of law and affirmative defenses.²

1 After Cruz failed to appear for a February 12, 2004 hearing before the Board, the WCB issued a Notice of Decision on or about February 20, 2004 stating that it planned no further action on the claim because of Cruz's failure to pursue it and the record did not contain prima facie medical evidence. See WCB's Verified Answer at Exh. A.

2 Respondent Cruz has not appeared in this proceeding.

Background

In connection with the accident, Selective, a no-fault insurer, paid no-fault automobile insurance benefits totalling approximately $255,467.81 on behalf of Cruz, its insured. Contending that the accident occurred in the course of Cruz's employment, and given that workers' compensation benefits are primary to nofault insurance benefits, petitioner sought to recover this amount from NYCTA by commencing an action before this court entitled Selective Insurance Company of America as the insurer of Dante Cruz v. New York City Transit Authority, as the self-insured for workers' compensation claims (N.Y. County Index No. 603785/05) (the "subrogation action").

By decision and order dated September 18, 2008, ³ this court inter alia granted NYCTA's motion to dismiss the complaint in the subrogation action for lack of subject matter jurisdiction and directed the parties to resubmit the issue of whether Cruz was injured within the scope of his employment (the "employment issue") to the WCB within 30 days. Selective timely requested that the WCB re-open Cruz's case; however, by letter dated October 20, 2008, the WCB refused petitioner's request. See Petition at Exh. 1.

3 See Selective Ins. Co. of America v. New York City Transit Auth., 2008 WL 4375423.

As a result of the WCB's refusal, Selective moved before this court in the subrogation action for renewal and reargument of the September 18, 2008 decision and order, inter alia requesting this court to exercise secondary jurisdiction over the employment issue. By decision and order dated March 20, 2009, this court denied petitioner's motion for renewal and reargument on the ground that Workers' Compensation Law ("WCL") § 142(7) appeared to permit commencement of an Article 78 proceeding in the nature of mandamus to compel the WCB to hold an expedited hearing.⁴

4 See Selective Ins. Co. of America v. New York City Transit Auth., 2009 WL 803989.

Selective commenced such an Article 78 proceeding against the Board before the Supreme Court, Kings County, where the underlying workers' compensation case was brought. This proceeding was dismissed on or about November 23, 2009 due to lack of personal and subject matter jurisdiction and failure to exhaust administrative remedies.⁵

5 The Supreme Court, Kings County's (Rothenberg, J.) short form order dismissing the petition therein does not include any discussion of the basis for that court's determination, nor are any of the filings from that proceeding included in this record.

In response to this dismissal, petitioner moved again to restore the subrogation action to the calendar and for renewal of the September 18, 2008 order dismissing that action. At oral argument, Selective withdrew this motion and this court permitted petitioner to bring the instant Article 78 petition.

The Instant Article 78 Proceeding

In opposition to Selective's petition in this proceeding, the Board asserts the following objections in point of law and affirmative defenses: 1) the petition is untimely since it was not brought within four months of the WCB's October 20, 2008 notice denying Selective's request to reopen the Cruz claim (see CPLR § 217); 2) the WCB's notice of decision dated February 20, 2004 was never timely appealed pursuant to WCL § 23 and thus is final; 3) petitioner's reliance upon WCL § 142(7) is misplaced because this statutory provision was enacted in 2005, subsequent to the WCB's February 20, 2004 decision and does not apply retroactively; 4) mandamus is not available to compel an agency to perform a discretionary act such as reopening a case; and 5) as a no-fault automobile insurance carrier, petitioner lacks standing to commence or reopen claims before the WCB.

The NYCTA alleges two objections in point of law and affirmative defenses. First, NYCTA contends that it cannot be determined if the principles of res judicata and/or collateral estoppel apply and preclude this proceeding based upon the Supreme Court, Kings County's dismissal of Selective's prior Article 78 petition. Second, NYCTA reiterates the WCB's claim that this petition is untimely pursuant to CPLR § 217(1).

Discussion

In this proceeding, Selective seeks an order of mandamus to compel the Board to reopen Cruz's case and conduct a hearing on the employment issue. In order for petitioner to obtain such relief, it must demonstrate that it has "a clear legal right to the relief demanded" and that there exists "a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief". Sherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 757 (1991); Anonymous v. Commissioner of Health, 21 AD3d 841, 842-843 (1^st Dept. 2005).

In support of the petition, Selective relies upon this court's determinations in the subrogation action as summarized above. Notwithstanding the extensive proceedings before this court in the subrogation action, for the first time it has been brought to the court's attention that WCL § 142(7), upon which this court relied in its decision directing the employment issue be referred to the Board, had not been enacted at the time of Cruz's 2003 accident and the limited 2004 proceedings before the WCB. That provision became effective September 8, 2005, and as the Board correctly argues, does not apply retroactively. Prior to the enactment of WCL § 142(7), Selective would not have had standing to ask the Board to reopen Cruz's case. See Lotito v Salt City Playhouse, 66 AD2d 437 (3d Dept. 1979); Roa v American Transit Ins. Co., 96 AD2d 609 (3d Dept. 1983).

In light of the foregoing, Selective does not have "a clear legal right to the relief demanded", i.e., reopening of the Cruz case and the right to a mandatory hearing on the employment issue, and it is indeed in the WCB's discretion to grant petitioner's request to reopen. See Cagle v Judge Motor Corp., 31 AD3d 1016, 1017-1018 (3d Dept. 2006). Accordingly, the petition must be denied. The court need not address the respondents' remaining arguments. For the foregoing reasons, it is

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed.

The Clerk is directed to enter judgment accordingly.