B.Y., M.D., P.C. v American Tr. Ins. Co., 2010 NY Slip Op 51902(U)(App. Term 2d Dept. 2010)
“[d]efendant’s cross motion [is] remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant defendant’s cross motion dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed.”
“Defendant’s proof was sufficient to raise a question of fact as to whether plaintiffs’ assignor was acting as an employee at the time of the accident. Accordingly, the order is reversed and plaintiffs’ motion and defendant’s cross motion are remitted to the District Court to be held in abeyance pending 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.”
Again, we see that the remedy for failing to make a prompt application to the board within 90-days following a successful summary judgment motion is a dismissal of the matter on the merits.