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Civil Court, City of New York.

HAPPY APPLE MEDICAL SERVICES, PC as Assignee of Mario Eustache, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant.


Decided: April 13, 2021

Sanders Barshay Grossman, LLC for Plaintiff. Burke, Conway & Stiefeld For Defendant.

Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this application:

Papers Numbered

Amended Notice of Motion and Affirmation/Affidavit annexed 1-2

Affirmation in Opposition 3

Affirmation in Reply 4

Upon the foregoing cited papers, the decision on Defendant's Motion to Dismiss is as follows:

Plaintiff, Happy Apple Medical Services, PC (hereinafter, “Plaintiff”), as assignee of Mario Eustache (hereinafter, “Assignor”), commenced this action against the defendant, Liberty Mutual Insurance Company (hereinafter, “Defendant”), to recover assigned first-party No-Fault benefits for medical treatment provided to Assignor.

Currently before the Court is Defendant's motion seeking an order pursuant to CPLR 3211(a)(2) dismissing Plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff submitted opposition to Defendant's motion, and Defendant submitted an affirmation in reply. The motion was deemed submitted and decision was reserved.

Defendant moves to dismiss Plaintiff's complaint on the grounds that this Court lacks subject matter jurisdiction over the underlying causes of action. Specifically, Defendant argues that as the New York State Workers' Compensation Board (the “Board”) has found the underlying action to be a work-related accident, the Board has exclusive jurisdiction over all workers' compensation claims. Defendant argues this claim is not covered under its policy.1 Therefore, Defendant argues, the complaint must be dismissed because the underlying accident was determined by the Board to be work-related.

In opposition, Plaintiff argues that Defendant's policy exclusion defense should be precluded because the defense was not timely raised by a denial of the bill within 30 days of the submission of the claim (see Ins. Law 5106(a); 11 NYCRR 65-3.8(c)). The Plaintiff argues that there are only four exceptions to preclusion all involving “lack of insurance coverage” and since the exclusion due to a work-related injury is not one of them, Defendant's motion should fail. The Plaintiff does not make any argument regarding the subject matter jurisdiction of the Court.


Defendant is correct in noting that the Board has jurisdiction over the determination of whether an accident occurred within the scope of a claimant's employment (O'Rourke v Long, 41 NY2d 219, 228 [1976]). The Court of Appeals has ruled that the Board has “the primary jurisdiction, but not necessarily exclusive jurisdiction, in factual contexts concerning compensability.” (Liss v Trans Auto Sys, 68 NY2d 15, 20 [1986]). “When the question is purely one of fact, the Workers' Compensation Board has exclusive jurisdiction over the issue and it is only when the issue involves statutory construction that the trial court may hear the issue” (Gyory v Radgowsk, 89 AD2d 867, 869 [2d Dept 1982]). Therefore, it is outside this Court's jurisdiction to make a factual determination as to the eligibility of a claimant for workers' compensation benefits.

However, Plaintiff has not asked this Court to make such a determination. The causes of action before this Court seek monetary damages relating to unpaid invoices and attorneys' fees in accordance with a no-fault insurance policy allegedly issued by Defendant to Assignor. This determination is squarely within the Civil Court's jurisdiction (NY City Civ Ct Act § 202). The fact that the Assignor's accident was deemed to have been work-related does not divest the Civil Court of its jurisdiction. Rather the Board's determination is relevant to the extent that “workers' compensation benefits serve as an offset against first-party benefits payable under no-fault as compensation for ‘basic economic loss’ ” (Arvatz v Empire Mut. Ins. Co., 171 AD2d 262, 268 [2d Dept 1991]; Ins. Law § 5102(b)(2)).

Defendant's motion mischaracterizes the underlying action as a claim for payment under a workers' compensation insurance policy, rather than, as pleaded, for payment of benefits pursuant to a no-fault insurance policy. Therein lies the error of Defendant's argument. The law provides the Defendant with a valid defense to such a Civil Court action — an exclusion from the no-fault insurance policy from payment in instances of a work-related accident.

The Insurance Law and corresponding regulations require the service of a timely denial of the payment of the bill upon the health care provider within 30 days to exercise the exclusion (Ins. Law § 5106(a); 11 NYCRR 65-3.8(c)). Defendant has failed not only to present any policy documentation but also a denial form, timely or otherwise. As such, that issue is not before the Court. Any discussion or argument pertaining to Defendant's denial and issues of preclusion are not applicable to the current motion.

The sole question before this Court in the instant motion is whether the Court has subject matter jurisdiction. The matter before the Court is not a determination of a workers' compensation claim, but rather a claim for reimbursement under a no-fault automobile insurance policy. The availability of workers' compensation benefits can serve as a defense to the No-Fault claim, but it does not invalidate the Civil Court's subject matter jurisdiction. This Court has jurisdiction to adjudicate the causes of action as it relates to the reimbursement and defenses under the no-fault insurance policy. The Defendant's motion makes no other argument to justify the dismissal of the complaint other than alleging a lack of subject matter jurisdiction of the no-fault insurance claim.

Accordingly, the Defendant's motion is hereby denied.

The foregoing constitutes the Decision and Order of the Court.


1.   While New York law permits No-Fault policies to exclude payment for treatment of work-related injuries (11 NYCRR 65-3.16), the Defendant did not offer a copy of the no-fault insurance contract containing such an exclusion. However, the Court assumes the exclusion applies as a matter of the regular industry practice. However, this assumption, without admissible evidence, does not factor into the Court's decision.

Robert J. Helbock Jr., J.

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