Civil Court of the City of New York, Richmond County, February 7, 2018

Baker Sanders, L.L.C., Garden City, for plaintiff.

Law Offices of Daniel J. Tucker, Brooklyn, for defendant.

American Transit Insurance Company (hereinafter, defendant) filed this motion to stay the action pending a determination from the Workers' Compensation Board (hereinafter, the Board) on whether Chiropractic Testing Services of New York (hereinafter, plaintiff) could be paid for treatment of Nelson De La Cruz (hereinafter, assignor) under workers' compensation. Defendant claims that since assignor was injured in the course of employment, his claims should be covered by workers' compensation and not personal injury protection and, therefore, the matter must be adjudicated by the Board before it reaches this court.

Plaintiff argues that in order for the court to stay the proceeding, defendant must establish the existence of an employer-employee relationship, citing Matter of Global Liberty Ins. Co. v Abdelhaq (36 AD3d 909 [2d Dept 2007]) where a stay was denied because the claimant failed to submit evidence that the cab driver's base was his employer at the time of the accident. This case is distinguishable from Global Liberty, however, because assignor did not own his vehicle. Here, American United Transportation (hereinafter, the cab company) owned the vehicle and was named as the insured on the automobile insurance policy.

According to Workers' Compensation Law § 2 (3), a livery base shall be deemed the "employer" of a driver if it must register with the Taxi & Limousine Commission and is [*2]not an "independent livery base" as defined in section 18-c.^[FN1] Even in cases where the driver owned the vehicle and paid for its fuel and{**59 Misc 3d at 252} maintenance, the Board has found an employer-employee relationship because the vehicle carried the dispatcher's sign and telephone number, the dispatcher provided his radio, and the dispatcher exerted control over which calls he would pick up and how much he could charge (see Matter of Olistin v Wellington, 3 AD3d 618 [3d Dept 2004]).

Insurance Law § 5102 (b) (2) states that a no-fault claimant is entitled to reimbursement for economic loss less amounts "recovered or recoverable" from workers' compensation benefits. The Court of Appeals has held that a no-fault insurer may attain "party in interest" status to a Board proceeding, upon the discretion of the Workers' Compensation Law Judge (WCLJ), while the WCLJ makes the determination whether an employer-employee relationship existed (Liss v Trans Auto Sys., 68 NY2d 15 [1986]). The courts have consistently ruled that the legislature has vested "primary jurisdiction" in the Board over the issue of the availability of coverage under the Workers' Compensation Law, and that plaintiffs have "no choice but to litigate this issue before the Board" (id. at 21).

The Court of Appeals has further held that, where the availability of workers' compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions (O'Rourke v Long, 41 NY2d 219, 228 [1976]). Essentially, where a determination as to whether an accident arose out of a plaintiff's employment is likely to require extensive fact-finding, the court should, "in the exercise of sound discretion," defer to the Board (Jing Huo Lac v American Tr. Ins. Co., 19 Misc 3d 1146[A], 2008 NY Slip Op 51177[U], *3 [2008], citing Weber v State of New York, 104 Misc 2d 947 [Ct Cl 1980]).

Defendant need not prove that assignor was employed by the cab company at the time of the accident, but merely show "potential merit" to its claim so as to trigger a determination by the Board (A.B. Med. Servs. PLLC v American Tr. Ins. Co., 8 Misc 3d 127[A], 2005 NY Slip Op 50959[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).^[FN2]

In this case, we do not know the degree of control exerted by the cab company over assignor, but that should not preclude{**59 Misc 3d at 253} plaintiff's duty to seek recovery under workers' compensation. The facts that the cab company owned the vehicle involved in the accident and is named as the insured on its automobile policy show "potential merit" that the cab company is not an independent livery base and, therefore, assignor would be covered under workers' compensation.

The motion to stay is granted, pending a determination by the Workers' Compensation Board on the parties' rights under the Workers' Compensation Law.

In the event plaintiff fails to file proof with the court of an application to the Workers' Compensation Board within 90 days of the date of the order entered hereon, the court shall grant [*3]summary judgment in favor of defendant dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.