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Workers Comp – trialble issue of fact.



Compas Med., P.C. v American Tr. Ins. Co., 2017 NY Slip Op 51192(U)(App. Term 2d Dept. 2017)

“Contrary to plaintiff’s argument on appeal, defendant proffered sufficient evidence to support its contention that there was an 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. Arce Med. & Diagnostic Svce v American Tr. Ins. Co., 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U] [App Term, 2d Dept, 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 Dept, 2d, 11th & 13th Jud Dists 2011]), which issue must be resolved [*2]in the first instance by the Workers’ Compensation Board (see O’Rourke v Long, 41 NY2d 219, 225 [1976]; Arce Med. & Diagnostic Svce, 39 Misc 3d 134[A], 2013 NY Slip Op 50531[U]; Jamaica Med. Supply, Inc., 34 Misc 3d 133[A], 2011 NY Slip Op 52371[U]).”


Here was part  of my brief on this.   I honestly forgot I wrote this, as I think I might do all of these appeals on autopilot.  Admittedly, however, the ATIC appeals always involved a level of ingenuity in forcing a square peg into a round hole.  I have since found other intellectual projects to stimulate my thinking.


“A triable issue of fact existed as to whether Appellant Assignor was in the course of employment when the accident occurred. This was supported through a hack license issued by the Department of Transportation, a commercial driver’s license that Appellant Assignor signed, a policy of
insurance covering a livery vehicle and a police report showing that Appellant Assignor was the driver of the said insured livey vehicle.

Civil Court found this proof sufficient to raise a triable issue of fact as to whether Appellant Assignor was in the course of his employment when the accident occurred. Therefore, summary judgment was granted to Respondent to the extent that the complaint would be dismissed unless
Appellant filed a prompt application with the Workers Compensation Board”


“The evidence Respondent presented was sufficient to raise a triable issue of fact for the board to decide. Initially, all of Appellant’s evidentiary objections to the admissibility of the proof are unpreserved and cannot be raised for the first time on appeal.  Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 2014 NY Slip Op 51810(U) (App. Tenn 2d Dept. 2014); New Way Medical Supply Corp. v. ELRAC, Inc., 46 Misc.3d 132(A)(App. Term 2d Dept. 2014). See Joe v Upper Room Ministries, Inc., 88 AD3d 963 (2d Dept. 2011)”

On the merits, the evidence was not necessarily used for the truth of the matter asserted. The policy of insurance, hack license, commercial driver’s license and police report were offered to show that Appellant Assignor represented to be hack driver who was insured to operate a livery
vehicle. The truth of the assertions in these documents was an issue to be litigated before the Workers Compensation Board.

Furthermore, an uncertified police report is utilized to determine as preliminarily inatter the existence of coverage and whether a framed issue hearing is warranted. Matter of Allstate Ins. Co. v Aizin, 102 A.D.3d 679 (2d Dept. 2013); American Intern. Ins. Co. v. Giovanielli, 72 AD3d 948 (2d
Dept. 2010; Matter of Government Eh1pls. Ins. Co. v McFarland, 286 A.D.2d 50 (2d Dept. 2001)

Here, the police report showed that Appellant Assignor was the named driver of the livery motor vehicle. The truth of these assertions will await a framed issue hearing before the Workers Compensation board.  In total, a triable issue of fact has been raised that Appellant Assignor
operated a livery motor vehicle while “employed”. This is sufficient to warrant a hearing by the Workers Compensation board to determine the veracity of the coverage dispute.

Consequently, there is a triable issue of fact as to whether workers compensation would be primary. In total, the order of Civil Court should be affirmed.”

-go me.  short, sweet and to the point.



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