Appeal from an order of the District Court of Nassau County, Third District (Norman Janowitz, J.), entered November 21, 2007. The order, insofar as appealed from, denied without prejudice plaintiffs' motion for summary judgment and held the action in abeyance pending an application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law.

Order, insofar as appealed from, modified by striking the provision denying without prejudice plaintiffs' motion for summary judgment and by remitting plaintiffs' motion to the District Court to be held in abeyance pending a prompt application to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs' motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed. As so modified, order, insofar as appealed from, affirmed without costs.

For the reasons stated in A.B. Med. Servs., PLLC a/a/o Wilkens LaGuerre v American Tr. Ins. Co. (___ Misc 3d ____, 2009 NY Slip Op _____ [No. 2008-281 N C], decided herewith), the order, insofar as appealed from, is modified as set forth above. [*2]

Rudolph, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: June 18, 2009