LONGEVITY MEDICAL SUPPLY INC v. TRAVELERS INDEMNITY CO (2022)

ORDERED that the appeal is dismissed.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff's assignor's alleged eligibility for workers’ compensation benefits and plaintiff cross-moved for summary judgment. The Civil Court held the motions in abeyance pending an application by plaintiff to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. Plaintiff appeals.

The order appealed from did not decide defendant's or plaintiff's motions but instead held the motions in abeyance pending plaintiff seeking a determination from the Workers’ Compensation Board as to whether plaintiff's assignor had been acting in the course of his employment at the time of the accident and whether, therefore, workers’ compensation benefits might be available (see O'Rourke v Long, 41 NY2d 219, 225 [1976]). Thus, the order is not appealable as of right (see CCA 1702 [a] [2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305 [2006]; Daily Med. Equip. Distrib. Ctr., Inc. v Global Liberty Ins., 58 Misc 3d 127[A], 2017 NY Slip Op 51710[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]) and, under the circumstances, we decline to grant leave to appeal.

Accordingly, the appeal is dismissed.

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