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Chiropractic Testing Services of New York, P.C. v. American Transit Insurance Co.

Civil Court of the City of New York, Richmond County

February 7, 2018

Chiropractic Testing Services of New York, P.C., A/A/O Nelson De La Cruz, Plaintiff,
v.
American Transit Insurance Co., Defendants.

          HON. LISA GREY Judge.

         Recitation, as required by CPLR 2219(a), of the papers considered in the review of this

         MOTION TO STAY

         Papers Numbered

         Notice of Motion and Affidavits Annexed 1

         Order to Show Cause and Affidavits Annexed

         Answering Affidavits

         Replying Affidavit of defendant 2

         Exhibits

         Other

         Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

         American Transit Insurance Company (hereinafter, "Defendant") filed this motion to stay the action pending a determination from the Workers' Compensation Board (hereinafter, "the Board") on whether Chiropractic Testing Services of New York (hereinafter, "Plaintiff") could be paid for treatment of Nelson De La Cruz (hereinafter, "Assignor") under workers' compensation. Defendant claims that since Assignor was injured in the course of employment, his claims should be covered by workers compensation and not personal injury protection and, therefore, the matter must be adjudicated by the Board before it reaches this Court.

         Plaintiff argues that in order for the Court to stay the proceeding, Defendant must establish the existence of an employer-employee relationship, citing Global Liberty Insurance Co. v. Abdelhaq (36 A.D.3d 909');">36 A.D.3d 909 [2d Dept 2007]) where a stay was denied because the claimaint failed to submit evidence that the cab driver's base was his employer at the time of the accident. This case is distinguishable from Global Liberty, however, because Assignor did not own his vehicle. Here, American United Transportation (hereinafter, "the cab company") owned the vehicle and was named as the insured on the automobile insurance policy.

         According to Workers Compensation Law § 2 (3), a livery base shall be deemed the "employer" of a driver if it must register with the Taxi & Limousine Commission (TLC) and is not an "independent livery base" as defined in § 18-c [1]. Even in cases where the driver owned the vehicle and paid for its fuel and maintenance, the Board has found an employer-employee relationship because the vehicle carried the dispatcher's sign and telephone number, the dispatcher provided his radio, and the dispatcher exerted ...


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