COMPAS MEDICAL v. AMERICAN TRANSIT INS CO (2019)

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that plaintiff's assignor had been injured during the course of employment. By order entered June 10, 2014, the Civil Court granted defendant's cross motion to the extent of holding the matter in abeyance for 90 days pending the filing of an application to the Workers' Compensation Board (Board). The court further stated that if plaintiff failed to file proof of such application with the court, defendant's cross motion for summary judgment dismissing the complaint would be granted.

Defendant subsequently moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to comply with the Civil Court's prior order in that plaintiff had not filed an application with the Board. Plaintiff cross-moved for summary judgment. By order entered May 1, 2018, the Civil Court granted defendant's motion and denied plaintiff's cross motion.

Since plaintiff did not demonstrate that it had complied with the Civil Court's June 10, 2014 order requiring plaintiff to make a proper application to the Board to determine the parties' rights under the Workers' Compensation Law (see LMK Psychological Serv., P.C. v. American Tr. Ins. Co., 64 AD3d 752 [2009]), the order entered May 1, 2018 is affirmed.

To the extent that plaintiff argues that it believes that Workers' Compensation Law § 28 renders any claim for workers' compensation benefits untimely in this case—because plaintiff's assignor did not make an application for benefits within two years of the date of the accident—such argument is unavailing, particularly where, as here, defendant demonstrated, and plaintiff did not deny, that defendant had timely denied plaintiff's claim on the ground that plaintiff's assignor was injured during the course of his employment (see New Millennium Radiology, P.C. v. American Tr. Ins. Co., 60 Misc 3d 128[A], 2018 NY Slip Op 50940[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ).

Accordingly, the order is affirmed.

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