Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 7, 2009. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's cross motion for summary judgment is remitted to the Civil Court for a new determination after final resolution of a prompt application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law. In the event plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of this decision and order, the Civil Court shall grant defendant's cross motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits. The Civil Court denied both the motion and the cross motion, finding that defendant had "failed [*2]to preserve a defense of Workers' Compensation being . . . primary." Defendant appeals from so much of the order as denied its cross motion.

Defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that there was a triable issue as to whether plaintiff's assignor had been acting as an employee at the time of the accident, and that therefore workers' compensation benefits might be available (see e.g. 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]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; 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]; 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 (Board) (see O'Rourke v Long, 41 NY2d 219, 225 [1976]; see also Dunn v American Tr. Ins. Co., 71 AD3d 629 [2010]; D.A.V. Chiropractic, P.C. v American Tr. Ins. Co., 29 Misc 3d 128[A], 2010 NY Slip Op 51738[U]; AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 27 Misc 3d 133[A], 2010 NY Slip Op 50708[U]; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145[A], 2007 NY Slip Op 51176[U]).

Accordingly, defendant's cross motion should not have been denied. Instead, the Civil Court should determine the cross motion after final Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties' rights under the Workers' Compensation Law (see Dunn v American Tr. Ins. Co., 71 AD3d 629; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: December 23, 2011