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A.B. Medical Services, Pllc, D.A.V. Chiropractic, P.C. and Lvov Acupuncture, P.C. As Assignees of Omar Ba, Respondents v. American Transit Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


January 17, 2012

A.B. MEDICAL SERVICES, PLLC, D.A.V. CHIROPRACTIC, P.C. AND LVOV ACUPUNCTURE, P.C. AS ASSIGNEES OF OMAR BA, RESPONDENTS,
v.
AMERICAN TRANSIT INSURANCE COMPANY, APPELLANT.

Appeal from an order of the District Court of Nassau County, Third District (Tricia M. Ferrell, J.), dated October 29, 2009, deemed from a judgment of the same court entered December 1, 2009 (see CPLR 5501 [c]).

A.B. Med. Servs., PLLC v American Tr. Ins. Co.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 17, 2012

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The judgment, entered pursuant to the October 29, 2009 order granting plaintiffs' motion for leave to renew their prior motion for summary judgment, which motion was denied by an order of the same court dated July 21, 2008, and, in effect, for leave to renew their opposition to defendant's prior cross motion for summary judgment dismissing the complaint, which cross motion was granted by the July 21, 2008 order, and, upon renewal, granting plaintiffs' motion for summary judgment and implicitly denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiffs the principal sum of $11,310.74.

ORDERED that the judgment is reversed, without costs, the order dated October 29, 2009 is vacated, plaintiffs' motion for leave to renew is denied, and the order dated July 21, 2008 is reinstated.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiffs' claims based upon the assignor's eligibility for workers' compensation benefits, and that there was an issue as to whether plaintiffs' assignor was injured during the course of employment, thereby requiring that the matter be submitted to the Workers' Compensation Board (Board). In an order dated July 21, 2008, the District Court denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint, finding that the matter should be referred to the Board for its determination of the issue of whether plaintiffs' assignor was in the course of his employment at the time of the accident.

Thereafter, plaintiffs moved for leave to renew their prior motion on the ground that, at the time of the prior order, the District Court had been unaware that the Board would be unable to hear the matter since plaintiffs' assignor had failed to file a claim with the Board. In support of their motion, plaintiffs offered a copy of their counsel's letter to the Board which requested that the Board schedule a hearing regarding the issue of their assignor's employment. Plaintiffs also annexed a letter from the Board which purportedly responded to counsel's letter but in fact did not do so, and instead referred to a different letter sent by counsel.

Defendant opposed plaintiffs' motion, urging the court to deny the motion because it was not "based upon new facts not offered on the prior motion that would change the prior determination or . . . demonstrate that there . . . [was] a change in the law that would change the prior determination" (CPLR 2221 [e] [2]) and because the motion did not "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]).

By order dated October 29, 2009, the District Court granted plaintiffs' motion for leave to renew and, upon renewal, in effect vacated the July 21, 2008 order, granted plaintiffs' motion for summary judgment, and implicitly denied defendant's cross motion for summary judgment. A judgment in the principal sum of $11,310.74 was subsequently entered. Defendant's appeal from the order is deemed to be from the judgment (CPLR 5501 [c]).

"A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion" (Ellner v Schwed, 48 AD3d 739, 740 [2008]; see CPLR 2221 [e]; Keyland Mech. Corp. v 529 Empire Realty Corp., 48 AD3d 755 [2008]). Such a motion " is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Renna v Gullo, 19 AD3d 472, 473 [2005], quoting Rubinstein v Goldman, 225 AD2d 328, 329 [1996]). The District Court granted leave to renew based on plaintiffs' purported "new facts." However, the "new facts" offered in support of renewal were in the form of a letter from plaintiffs' counsel to the Board, requesting that the Board schedule a hearing pursuant to the District Court's July 21, 2008 order, and a letter from the Board's General Counsel to plaintiffs' counsel which was not responsive to plaintiffs' counsel's letter, did not refer to the instant case, and, in fact, referred to a different letter from plaintiffs' counsel. There was nothing in plaintiffs' submissions to indicate any personal knowledge that a proper application for workers' compensation benefits had been made by plaintiffs' assignor, or that the Board had actually rejected such application. Accordingly, leave to renew should have been denied, and the District Court improvidently exercised its discretion in granting plaintiffs' motion.

We note that, contrary to the conclusion of the District Court, it is the Board which has primary jurisdiction to resolve the question of coverage (see Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]; LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).

Accordingly, the judgment is reversed, the October 29, 2009 order is vacated, plaintiffs' motion for leave to renew is denied and the order dated July 21, 2008 is reinstated.

Nicolai, P.J., Molia and Iannacci, JJ., concur. Decision Date: January 17, 2012

20120117

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