ACTIVE CARE MEDICAL SUPPLY CORP v. GLOBAL LIBERTY INSURANCE (2021)

ORDERED that the order is reversed, with $30 costs, and defendant's motion, pursuant to CPLR 4404, to set aside the decision of the Civil Court and for a new trial is granted.

In this action by a provider to recover assigned first-party no-fault benefits, a nonjury trial was held which, pursuant to a prior order, was limited to the issue of “whether Worker[s’] Compensation is primary.” After the trial, upon finding that defendant's certified transcript of an examination under oath (EUO) of plaintiff's assignor was not admissible based on law of the case, the court found in favor of plaintiff. Defendant moved, pursuant to CPLR 4404 (b), to set aside the decision and for a new trial. Defendant appeals from an order of the Civil Court dated March 7, 2019 denying its motion.

We find that the Civil Court should have considered the certified EUO transcript to determine whether defendant had proffered “sufficient evidence to support its contention that there was an issue as to whether plaintiff's 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” (Quality Health Prod., Inc. v American Tr. Ins. Co., 65 Misc 3d 155[A], 2019 NY Slip Op 51950[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is reversed and defendant's motion, pursuant to CPLR 4404, to set aside the decision of the Civil Court and for a new trial is granted.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.