|Sunrise Acupuncture PC v Global Liberty Ins. Co. of N.Y.|
|2018 NY Slip Op 51887(U) [62 Misc 3d 129(A)]|
|Decided on December 20, 2018|
|Appellate Term, First Department|
|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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Defendant appeals from two judgments of the Civil Court of the City of New York, Bronx County (Marian C. Doherty, J.), entered April 19, 2018, after a consolidated nonjury trial, in favor of plaintiff and awarding it damages in the principal amounts of $861.32 and $593.77, respectively.
Judgments (Marian C. Doherty, J.), entered April 19, 2018, affirmed, with one bill of $25 costs.
The trial court properly denied defendant-insurer's belated attempt to invoke the primary jurisdiction of the Workers' Compensation Board [WCB] in these consolidated first-party no-fault actions. Other than asserting the workers' compensation statute as one of eighteen affirmative defenses in its respective May 2011 answers, defendant did not otherwise raise or pursue the workers' compensation issue during the course of the litigation, and indeed, only raised the issue at trial, nearly seven years later. Under these particular circumstances, defendant "may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation" (Sangare v Edwards, 91 AD3d 513, 515 ; see Ovenseri v St. Barnabas Hosp., 94 AD3d 495 ; Bastidas v Epic Realty, LLC, 58 AD3d 776, 777 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: December 20, 2018