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Workers Compensation defense substantitated

Chiropractic Testing Servs. of N.Y., P.C. v American Tr. Ins. Co., 2018 NY Slip Op 28052 (Civ. Ct. Richmond Co. 2018)

“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 (TLC) and is [*2]not an “independent livery base” as defined in § 18-c [FN1] . Even in cases where the driver owned the vehicle and paid for its fuel and 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 Olistin v Wellington, 3 AD3d 618 [3d Dept 2004]).”

“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 Am. Transit Ins. Co., 8 Misc 3d 127 [2d Dept 2005][FN2] ).”