Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. The order held in abeyance plaintiff's motion for summary judgment and defendant's motion for summary judgment dismissing the complaint, pending an application to the Workers' Compensation Board to determine 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 moved for summary judgment, and defendant moved for summary judgment dismissing the complaint based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits. The Civil Court held both motions in abeyance pending an application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law. Plaintiff appeals.

We agree with the Civil Court that defendant proffered sufficient evidence to support its contention that there was a triable issue as to whether plaintiff's assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers' compensation benefits might be available (see e.g. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d, 11th & 13th Jud Dists 2013] Jamaica Med. Supply, Inc. v American Tr. Ins. Co., 34 Misc 3d 133[A], 2011 NY 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 NY Slip Op 51738[U] [App Term, 2d, 11th & 13th Jud Dists 2010] 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 (see O'Rourke v Long, 41 NY2d 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 NY Slip Op 52371[U] D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]). We find that, in the circumstances, defendant's failure to submit certificates of conformity was not a fatal error (see e.g. Gonzalez v Perkan Concrete Corp., 110 AD3d 955, 960 [2013] Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 110 AD3d 680, 682 [2013] Matos v Salem Truck Leasing, 105 AD3d 916 [2013] Fredette v Town of Southampton, 95 AD3d 940, 942 [2012] Francis v Allain, 21 Misc 3d 142[A], 2008 NY Slip Op 52386[U] [App [*2]Term, 2d & 11th Jud Dists 2008]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014