NORTH SHORE UNIVERSITY HOSPITAL AT MANHASSET v. COYLE (2006)

Third-party defendant's motion to dismiss the third-party plaintiff's complaint is denied for reasons set forth herein.

On July 1, 2002 defendant/third-party plaintiff, Anne Coyle, injured her right arm while in the course of employment with the third-party defendant, SCO Family Services.   She was taken to North Shore University Hospital at Manhasset where she was treated and her claim processed as a Worker's Compensation injury.

However, it appears that the employer/third-party defendant refused to pay $1,036 for the emergency room medical expenses.   Plaintiff then brought suit against defendant/third-party plaintiff to recover the unpaid medical bills.   In response, defendant filed a third-party action against her employer, the third-party defendant.   Third-party defendant has now filed this Motion to Dismiss the third-party Complaint, citing the Exclusivity Provision of the Worker's Compensation Law.

The third-party defendants contend that the case brought against them should be dismissed pursuant to Botwinick v. Ogden, 59 N.Y.2d 909, 466 N.Y.S.2d 291, 453 N.E.2d 520 (1983) which affirmed the Exclusivity Provision of the WCB prohibiting suing an employer for on-the-job injuries.   However, in this case, third-party plaintiff was not able to file a claim with the WCB because the third-party defendant did not process the claim.   Third-party defendant currently has exclusive possession of records of the report of injury, which are necessary for filing a complaint with the Worker's Compensation Board, as stated in Coyle's affidavit.   Notably, the employer does not deny this allegation.

The third-party defendant also cites Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 482 N.Y.S.2d 720, 472 N.E.2d 682 (1984) as precedent for grounds of dismissal.   However, these cases are distinguishable because in the instant case, third-party plaintiff is seeking medical coverage, not damages.   In Burlew, plaintiff sued for damages stemming from the illness he suffered due to negligence on the part of the defendant.   In Burlew, the plaintiff sought damages for personal injury while the instant case seeks coverage for medical services.

In addition, the Court finds that Calhoun v. Big Apple Wrecking Corp., 162 A.D.2d 574, 557 N.Y.S.2d 90 (2d Dept. 1990) is not applicable to this case because the third-party plaintiff has not been compensated by the Workman's Compensation Board.   The third-party plaintiff has not been able to file a claim with the Worker's Compensation Board since the records of her injury are in exclusive possession of third-party defendant.

The Court finds no valid grounds in the third-party defendant's Motion to Dismiss the complaint of the third-party plaintiff.

So ordered.

SCOTT FAIRGRIEVE, J.