MEDICAL SUPPLY INC v. GLOBAL LIBERTY INS CO OF NY (2019)

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved to hold the action in abeyance pending an application to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits. By order entered May 17, 2018, insofar as is relevant, the Civil Court denied defendant's cross motion. Defendant appeals.

The defense that the assignor is eligible for workers' compensation benefits is subject to preclusion (see Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). As defendant failed to demonstrate that it had timely denied plaintiff's claims on the ground that the assignor was injured in the course of his employment (see 11 NYCRR 65-3.5 [a]; Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274, 282 [1997]), defendant's cross motion was properly denied.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.