Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co. (2010 NY Slip Op 52297(U))

Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co.

2010 NY Slip Op 52297(U) [30 Misc 3d 129(A)]

Decided on December 7, 2010

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.

Devonshire Surgical Facility, L.L.C. and Carnegie Hill Orthopedic Services, P.C., a/a/o Junel Georges, Plaintiffs-Appellants,

against

Hereford Insurance Company, Defendant-Respondent.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered August 4, 2009, which granted defendant's cross motion for summary judgment dismissing the complaint and denied plaintiffs' motion for summary judgment.

Order (Arlene P. Bluth, J.), entered August 4, 2009, reversed, without costs, the order vacated and the matter remanded to Civil Court for a new determination of the parties' respective motions for summary judgment following an application by plaintiffs to the Workers' Compensation Board to determine their rights under the Workers' Compensation Law.

In this action to recover assigned first-party no-fault benefits, defendant's submissions in support of its cross motion for summary judgment dismissing the complaint presented an issue of fact as to the applicability of the Workers' Compensation Law to the subject loss, which defendant alleged occurred during the course of the assignor's employment (see Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; Arvatz v Empire Mut. Ins. Co., 171 AD2d 262 [1991]; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 [2009]). "Primary jurisdiction with respect to determinations as to the applicability of the Workers' Compensation Law has been vested in the Workers' Compensation Board" (Botwinick v Ogden, 59 NY2d 909, 911 [1983]). Therefore, resolution of the factual question presented on this record "is best suited for determination by the [Workers' Compensation] Board, given its expertise in the area" (Arvatz, 171 AD2d at 269), and the parties' respective summary judgment motions should have been held in abeyance pending a determination by the Workers' Compensation Board as to the applicability of the Workers' Compensation Law to plaintiffs' claim (see Botwinick, supra; Dunn, supra; LMK [*2]Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

We note that, contrary to plaintiffs' contention, Civil Court properly determined that defendant established that its denials were timely mailed within the prescribed 30-day period (see 11 NYCRR 65-3.8[a][1], [c]); cf. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009], lv denied 13 NY3d 714 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: December 07, 2010