Plaintiff Jin Huo Lac ("plaintiff" or "Lac"), a medical service provider, commenced this

action, pursuant to the No-Fault Law, to recover payments from defendant American Transit Insurance Company ("defendant") for services plaintiff rendered to its assignor Maria Acosta ("assignor" or "Acosta") as a result of the injuries that she sustained in an automobile accident. .

Defendant moves to dismiss the action on the ground that the assignor is entitled to Workers Compensation because she was attached to a taxi corp/ car service base as an employee and that the Workers Compensation Board ("Board") has primary jurisdiction over issues of coverage. Defendant had previously denied plaintiff's claim based upon the aforementioned reason (See Explanation of Benefits and NF 10 form attached as Exhibit 6 to defendant's motion.) Defendant asserts that this court therefore lacks jurisdiction to hear the complaint pursuant to 11 NYCRR § 65-3.16(a)(9), Section 142 (7) of the Workers Compensation Law and precedent. Defendant also seeks to amend its answer to include the affirmative defense that this court lacks subject matter jurisdiction.

Plaintiff asserts that "a no-fault insurer asserting a defense that Workers Compensation is primary would need to establish, as a threshold matter, that the claimant was employed at the time of the underlying motor vehicle accident." Plaintiff asserts that defendant failed to submit any admissible evidence that the assignor was employed at the time of the accident. To this end, plaintiff contends that the police accident report, which states that the TLC license plate on the car Acosta was driving is registered, is inadmissable as rank hearsay since there is no proof that the officer saw the accident. Even assuming, arguendo, that the report is admissible, plaintiff contends that defendant still has failed to establish that the assignor was "working" at the time of the accident; i.e. that the accident occurred during the course of employment.

Plaintiff and defendant stipulated at oral argument that the main issue before the court [*2]was whether the Workers Compensation Board has primary jurisdiction over the factual question of whether plaintiff's assignor was acting within the scope of her employment at the time of the accident. An ancillary but determinative issue is whether the police accident report, which sheds light upon the issue of the assignor's employment, is admissible.

In support of its position, defendant asserts that the assignor was the driver of a livery vehicle, license number T455140C , registered in New York State and insured by American Transit Insurance Company. In its reply papers defendant avers that the aforementioned license plate was authorized by the Taxi & Limousine Commission "which reasonably infers that the vehicle is a taxi or for-hire". Defendant further avers that the police accident report and defendant's review reveals that the vehicle operated by Acosta was registered and insured by Katt Corporation which defendant summarily asserts is a taxi/limousine service.

The police accident report (exhibit 7) does not have the two boxes - "not investigated at scene" and "accident reconstructed" on the first line checked off. Therefore, the police officer who filled out this form presumably observed the results of the accident. The accident report also sets forth that the car is registered to the Katt Corporation and lists the insurance policy number. The accident report checks off that a duplicate copy must be sent to the NYC Taxi & Limousine Commission.

The only document that relates to plaintiff's employment, or lack thereof, is the NF-3 - "Verification of Treatment by Attending Physician or other provider of Health Service" (Exhibit 2 to defendant's moving papers) which was presumably filled out by plaintiff Lac. Question number 4 - Occupation - is filled out as not applicable and question number 10 - "is condition due to injury arising out of patient's employment?" is answered as "No" . The NF-3 is not signed but notes that the signature is on file.

Pursuant to Insurance Law §5102 (b), "first party benefits" means payments to reimburse a person for basic economic loss due to personal injury arising out of use or operation of a motor vehicle, less (2) "Amounts recoverable on account of such injury under...Workers' Compensation benefits, or disability benefits under article nine of the Workers' Compensation Law. 11 NYCRR 65-3.16(a)(9) provides that pursuant to Insurance Law, §5102 (b), "when the applicant is entitled to Workers' Compensation benefits due to the same accident, the Workers' Compensation carrier shall be the sole source of reimbursement for medical expenses."

Similarly, Workers' Compensation Law, §142 (7) provides that "(w)here there has been a motor vehicle accident which caused personal injury and there is a dispute as to whether the injury occurred in the course of employment, the Workers' Compensation Board shall...hold an expedited hearing on...whether the accident occurred within the course of employment"

The courts have consistently ruled that the Legislature has vested "primary jurisdiction" in the Workers' Compensation Board over the issue of the availability of coverage under the Workers' Compensation Law, and that the plaintiff has "no choice but to litigate this issue before the Board". Liss v. Trans Auto Systems, Inc., 68 NY2d 15, 21 (1986); Alvarez v. Empire Mut'l [*3]Ins. Co., 171 AD2d 262, 268 (1st Dept. 1991); Diane Becker v. Clarkstown Cent. Sch. Dist., 157 AD2d 641 (2d Dept. 1990); Lenox Hill Radiology v. American Transit Ins. Co., 2008 NY Slip Op. 50330U, 18 Misc 3d 1136A, 239 N.Y.L.J. 46 (Civil Ct., NY Co. 2008). See, Mattaldi v. Beth Israel Medical Center, 297 AD2d 234 (1st Dept. 2002)(threshold issue of whether the plaintiff was in the course of her employment must first be determined by the Board.

Where a case is likely to fall within the exclusive jurisdiction of the Board, the plaintiff bears the burden of pleading and proving the absence of compensation. The plaintiff must demonstrate either that 1) no compensation policy covering the plaintiff was in existence, or 2) that plaintiff was not an employee of the defendant, or 3) that the injury did not arise out of and in the course of plaintiff's employment. O'Rourke v Long, 41 NY2d 219, 225 (1976); Weber v. State of New York, 104 Misc 2d 947 (Court of Claims, 1980).

"Where the availability of Workmen's Compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions." O'Rourke v Long , 41 NY2d 219, 228 (1976). On the other hand, the presence or absence of insurance coverage for a particular employee is a question of law to which the court retains jurisdiction. Id. at 225. Likewise, where the determination of the employment status of an injured party involves a pure matter of law, such as statutory construction, the court retains jurisdiction. Id. at 224. See, Jean-Paul Fouchecouort v. Metropolitan Opera Assn, 537 F. Supp. 2d 629 (S.D.NY)(court determined that plaintiff, an opera singer, fell within the statutory definition of an employee and that plaintiff was therefore barred by the exclusive remedies provisions of the Workers Compensation Law from bringing suit before court).

Pared to its minimum, the procedural implications of O'Rourke are that "where the trial court can resolve the limited issues of employment status or the existence of a compensation policy in a reasonable summary fashion, it should do so. Conversely, where determination of an issue, such as whether the accident arose out of plaintiff's employment, is likely to require extensive fact finding similar to a plenary trial, the court should, in the exercise of sound discretion, defer to the Board." Weber v. State of New York, 104 Misc 2d 947 (Court of Claims, 1980). Then, the Board must be given an opportunity to find plaintiff's injuries the result of a compensable accident; this claim being a jurisdictional predicate to a civil action. Liss, supra at 21; O'Rourke, supra at 226.

Plaintiff contends that before a defendant insurance company can argue that the Board has primary jurisdiction, it must establish, as a threshold matter, that the claimant was employed at the time of the underlying motor vehicle accident, citing Global Liberty Ins. Co. v. Abdelhaq, 36 AD3d 909 ( 2d Dept. 2007). It also asserts that it is impossible for defendant to establish employment since the one document that might shed light on the assignor's employment - the police accident report - is rank hearsay.

The Second Department's decision in Global Liberty is quite cryptic but does not appear [*4]in any way to diminish the force of the aforementioned precedent.^[FN1] At issue in Global was whether the court should permanently stay an arbitration proceeding over a claim for No-Fault benefits on the grounds that the insured was entitled to Workers Compensation benefits. The petitioner insurance company claimed that the insured's "base affiliation" with a cab service obligated the latter to secure Workers Compensation for the insured. The court refused to issue a stay on the grounds that the petitioner insurance company "failed to submit evidence that Kenmore was the insured's employer at the time of the accident." In fact, the petitioner alleged that the insured violated his insurance contract by failing to notify petitioner that "he left his base affiliation with Kenmore".

The most that can be garnered from Global is that when the only proof submitted is that the insured had some how ceased his relationship with the cab company, hence negating any implication that there was an employment relationship, the court need not relinquish jurisdiction to the Board. In the instant matter, on the other hand, there is conflicting evidence as to whether any employment relationship existed : the NF-3 seems to negate the existence of an employment relationship whereas the police accident report seems to confirm it. The issue thus presented is whether the police accident report constitutes admissible evidence and, if so, does it constitute sufficient evidence to raise a complicated factual question on employment so as to warrant the intercession of the Workers Compensation Board.

In Lenox Hill Radiology, supra , the court addressed the quantum of proof necessary for the court to decline jurisdiction in favor of the Workers Compensation Board. The defendant insurance company relied upon two documents in support of its position that the assignor was employed at the time of the accident. The first was an application for No-Fault benefits (N-F 2), filled out on behalf of the assignor and signed by the assignor. The question on this form inquiring whether the assignor was in the course of his employment at the time of the accident was answered yes. The second document was the MV -104 police accident report filled out by an officer which stated that the assignor 's vehicle was a taxi.

As to admissibility, the court found both documents to come within the business exception to hearsay. The police accident report could be considered "under the business record exception ...to the extent it was based upon the personal observations of the police officer present at the scene and under a business duty to make it" Id. citing Westchester Medical Ctr v. State Farm Mut. Ins. Co., 44 AD3d 750, 753 ( 2d Dept. 2007). Since neither the box "not investigated at the scene" nor "accident reconstruction" were checked off, the court concluded that the officer's notation that the assignor's vehicle was a "taxi" was "necessarily based on his observation at the scene of the accident". The same conclusion could also be drawn from the [*5]police report in the instant matter.^[FN2]

After citing the aforementioned precedent for the proposition that Worker's Compensation is primary, the Lenox court stated that the "defendant must show only that there is potential merit' to its claim that [the assignor] was employed at the time of the accident so as to trigger a determination by the Workers' Compensation Board. Id. citing A.B. Medical Serv. PLLC v. American Transit Ins. Co., 8 Misc 3d 127A, 801 NYS2d 776 [App. Term 2d Dept. 2005). The court found that the NF-2 stating that the assignor was employed at the time of the accident, and the observation of the police officer that the vehicle was a taxi, was sufficient for defendant to meet its burden. The court also noted that the plaintiff had failed to tender any evidence about the assignor's employment status.

Conversely, in A.B. Medical, supra , the court found that the insurance company had failed to establish the defense's "potential merit" so as to warrant the Workers Compensation Board's review of the facts. As against plaintiff' s proof - the assignor's sworn statement that he was not working when the accident occurred and the purported employer' s sworn statement that the assignor was not working - the insurance company interposed only a claim adjuster's statement that claimant was eligible for Workers Compensation, based upon an employer's unsworn statement dated 18 months before the accident, and a police accident report that the court would not consider since it was offered for the first time in defendant's reply papers. The court therefore concluded that the defendant's claim that the assignor acted in the course of his employment at the time of the accident was "mere speculation" and failed to establish any issues of fact regarding Worker's Compensation coverage that must be resolved by the Board.

In all cited cases but one ^[FN3] the courts have found primary jurisdiction to rest with the Board only where the movant has presented evidence about the employment relationship above and beyond a police accident report, i.e. the "right of control, method of payment, furnishing of material and nature of work, which are traditionally considered in determining whether an employment relationship existed". Arvatz v. Empire Mutual Ins. Co, supra , 171 AD2d at 267. See, Juan Lapont v. Savvas Cab Corp., 244 AD2d 208 (1st Dept. 1997) (sufficient facts presented to demonstrate potential merit of Workers Compensation defense: plaintiff's supervisor gave him work assignments and distributed his wages; supervisor also provided affidavit stating that he and plaintiff were both employees at defendant cab corporation and that defendant maintained a Workers Compensation insurance policy for its employees ); Hammer Associates, Inc v. Delmy Productions, Inc., 118 AD2d 441 (1st Dept. 1986) ( plaintiff entered into a written contract for a stipulated sum for a term certain and the time and place where he would work was determined by defendants leading to court's conclusion that plaintiff was an employee "as a [*6]matter of law" ); Weber v. State, supra (claimant's decedent employed by the State as a custodian, the policy of compensation insurance covering claimant was procured by state and was in full force and effect at time of accident, and claimant' s demise arose out of and in course of employment); Lenox Hill Radiology, supra (police accident report and application for no-fault benefits (N-F 2)..

Based on the aforementioned precedent and the evidence presented, this court concludes that the defendant has failed to show that there is potential merit' to its claim that the assignor was employed at the time of the accident so as to trigger a determination by the Workers' Compensation Board. Its motion for summary judgment to dismiss the complaint is denied.

Defendant's motion to amend its answer to include an affirmative defense based upon this court's lack of subject matter jurisdiction is granted. Leave to amend pleadings should be freely given (CPLR §3025[b]), and, in the absence of surprise or prejudice, it is an abuse of discretion as a matter of law for a trial court to deny leave to amend an answer during a trial. McCaskey, Davies & Assocs. v. N.Y.C. Health & Hops. Corp., 59 NY2d 755, 757 (1983); Smith v. Pizza Hut of America, Inc., 289 AD2d 48 , 50 (1st Dept. 2001). Plaintiff does not even assert, in its cross motion for summary judgment, that it will be prejudiced.

While the court, as set forth above, has serious doubts about the viability of defendant's argument that this court lacks subject matter jurisdiction, both parties will have an opportunity, at trial, to present their positions as to whether, as a matter of law, there is Workers Compensation insurance coverage for the assignor and whether the assignor falls within the statutory definition of an employee under the Workers Compensation Law. This court reserves a decision on whether plaintiff has proven its prima facie case until trial.

The foregoing constitutes the decision and order of the court.

Dated:June 12, 2008

Staten Island, NYHon. Katherine A. Levine

Judge, Civil Court

Appearances

Counsel for Defendant:

Gregory J. Guido, Esq.

SHORT & BILLY, P.C.

217 Broadway, Suite 511

New York, NY 10007

212-732-3320

Counsel for Plaintiff: [*7]

Joaquin J. Lopez, Esq.

Baker, Sanders, Barshay, Grossman,

Fass, Muhlstock & Neuwirth

150 Herricks Road

Mineola, NY 11501

516-741-4799