Infinity Health Prods., Ltd. v New York City Tr. Auth. (2008 NY Slip Op 52218(U))

Infinity Health Prods., Ltd. v New York City Tr. Auth.

2008 NY Slip Op 52218(U) [21 Misc 3d 136(A)] [21 Misc 3d 136(A)]

Decided on October 30, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

Infinity Health Products, Ltd. a/a/o SVETLANA SOKOLOVSKA, Respondent,

against

New York City Transit Authority, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph J. Esposito, J.), entered April 3, 2007, deemed from a judgment of the same court entered September 7, 2007 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the April 3, 2007 order granting plaintiff's motion for summary judgment, awarded plaintiff the sum of $2,687.07.

Judgment reversed without costs, order entered April 3, 2007 granting plaintiff's motion for summary judgment vacated, and matter remanded to the court below for a new determination of the motion with the direction that the court hold the matter in abeyance pending a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that there was an issue as to whether the assignor was injured during the course of her employment thereby requiring that the matter be submitted to the Workers' Compensation Board. By order entered April 3, 2007, the court below found that there was no indication that the "assignor was an employee of any employer required to provide workers['] compensation coverage," and granted plaintiff's motion for summary judgment. A judgment was subsequently entered. The instant appeal by defendant ensued. [*2]

We find that defendant's proof was sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident, which issue must be resolved by the Workers' Compensation Board (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; Matter of Pilku v 24535 Owners Corp., 19 AD3d 722, 723 [2005]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]; see also Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U] [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the judgment is reversed, the order is vacated, and the matter is remanded to the court below for a new determination of the motion with the direction that the court hold the matter in abeyance pending a prompt
application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law (see Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305, 305 [2006]).