AEE Med. Diagnostic, P.C. v Travelers Prop. Cas. Co. of Am., 2017 NY Slip Op 51209(U)(App. Term 1st Dept. 2017)
“Defendant’s submissions in support of its motion for summary judgment dismissing this first-party, no-fault action, including the statement of plaintiff’s assignor, raised triable issues as to whether the assignor had been acting in the course of his employment at the time of the accident and that, therefore, workers’ compensation benefits might be available (see Dunn v American Tr. Ins. Co., 71 AD3d 629 ; Great Health Care Chiropractic, P.C. v Lancer Ins. Co., 42 Misc 3d 145[A], 2014 NY Slip Op 50340[U] [App Term, 2d, 11th & 13th Jud Dists, 2014]). Plaintiff’s present argument that the assignor’s statement is defective and inadmissible, is unpreserved, as it is improperly raised for the first time on appeal (see Jordan v City of New York, 126 AD3d 619 ). The defects now alleged by plaintiff could have been corrected by defendant before the motion court, if raised at an earlier time (see DeJesus v Tavares, 140 AD3d 433 )”
“[T]he parties’ respective summary judgment motions should have been held in abeyance pending a determination by the Board as to the applicability of the Workers’ Compensation Law to plaintiff’s claims ”
This is the standard non livery W/C case. Here, the EIP must have said to someone he was going to work, worked as a travelling salesperson or something else. This is contrasted to the usual ATIC case where the driver seeks NF benefits, the driver is on a commercial policy and this fact in and of itself is sufficient to raise an issue of fact.
Considering the ease of which someone can seek a WC determination, I think the ATIC position may very well be meritorious. However, should the drivers all seek a board determination and it is found that they were not in the course of employment, guess who is eating all the denied bills? Double edged sword.