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

Upon the foregoing cited papers, the decision on Defendant's Motion for Summary Judgment is as follows:

Plaintiff, Advantage Radiology, P.C. (hereafter referred to as "Plaintiff"), as assignee of Atyba Orosco (hereafter referred to as "Assignor"), commenced this action against the defendant, Ace American Insurance Company (hereafter referred to as "Defendant"), to recover assigned first-party automobile insurance (hereafter referred to as "No-Fault") benefits for medical treatment provided to the Assignor pursuant to a No-Fault insurance policy issued by the Defendant.

The Defendant moves for an order (i) pursuant to CPLR §3211(a)(2), (5), and (7) dismissing the complaint on the grounds that the Court does not have subject jurisdiction because the N.Y.S. Workers' Compensation Board has exclusive jurisdiction to decide the claim.

The complaint in this matter alleges the assignor was injured in a motor vehicle accident on May 6, 2022. The Plaintiff's complaint alleges it provided medical treatment to the assignor on May 31, 2022 and billed the sum of $967.70. The complaint also alleges the Plaintiff [*2]provided medical treatment to the assignor on June 7, 2022 and billed the sum of $1,003.20 to the Defendant. The complaint alleges those sums remain unpaid.

The Defendant moves to dismiss the complaint on the grounds that the N.Y.S. Workers' Compensation Board issued a decision the following year, on May 16, 2023 establishing that the assignor's injuries were related to a work-related accident. The Defendant argues that since the Workers' Compensation Board established that the workers' compensation insurance carrier is liable for injuries to the assignor/claimant's right hand, right foot and left knee, this Court does not have subject matter jurisdiction to determine if the Defendant No-Fault carrier failed to timely pay the bill.

The Plaintiff opposes the motion alleging the Defendant failed to issue a timely denial of the bill, and the defense of the assignor's eligibility for workers' compensation benefits is subject to preclusion. Therefore, the Defendant's failure to timely deny the bill precludes the Defendant from raising the assignor's eligibility for workers' compensation benefits more than one year after the bill.

The N.Y.S. Workers' Compensation Law (hereafter referred to as "WCL") §20 directs that the N.Y.S. Workers' Compensation Board (hereafter referred to as "NYSWCB") "shall have full power and authority to determine all questions in relation to the payment of claims presented to it for compensation under the provisions of this chapter" (NY WCL §20). Therefore, the NYSWCB determines if the claim is covered by a worker's compensation insurance carrier.

However, the N.Y.S. Court of Appeals ruled that the NYSWCB has "primary jurisdiction, but not necessarily exclusive jurisdiction" regarding issues involving the accident (Liss v Trans Auto Systems, Inc., 68 NY2d 15 [1986]). The Court said, "[N]o one should be precluded from relitigating those issues in a court of law who has not had the opportunity to participate in the compensation hearing." (Liss v Trans Auto Systems, Inc., 68 NY2d 15, at P. 20 [1986]. "The [NYSWCB] thus has primary jurisdiction over the issue of availability of coverage (Id. Liss, citing, Botwinick v Odgen, 50 NY2d 9-9, 911, and Peckham v Peckham Materials Corp., 102 AD2d 884) and a plaintiff has no choice but to litigate this issue before the Board." (Liss v Trans Auto Systems, Inc., 68 NY2d 15 at P. 20 [1986], citing Cunnigham v. State of New York, 60 M.Y.2d 248, and McMillan v. Notre Dame Residence Club, 33 Misc 2d 948).

The Defendant relies on Seigel v Garibaldi (158 AD3d 1049 [3d Dept, 2018]) to allege that this Court does not have jurisdiction over the No-Fault claim involving the accident. The movant quoted Seigel as stating, "Workers' Compensation is plaintiff's exclusive remedy, 'in place of any other liability [whatsoever;'] see, Seigel v. Garibaldi, 158 AD3d 1049, 73 N.Y.S.3d 253."^[FN1] Actually, the relevant quote from the Seigel decision is:

"There is no dispute that plaintiff and defendant were co-employees, that plaintiff was injured in the course of his employment and that he collected workers compensation benefits for his injuries. Pursuant to Workers Compensation Law §29(6), such benefits are the exclusive remedy for an employee injured 'by the negligence or wrong of another in the same employ.' The sole question presented is whether the defendant was acting [*3]within the scope of his employment at the time of the accident so as to trigger the exclusivity provisions of the Workers Compensation Law" (Siegel v. Garibaldi, 158.3d 1049, at P. 149 [3d Dept., 2018], citing NY WCL §29(6) and Maines v. Cronomer Val. Fire Dept., 50 NY2d 535, 544 [1980]).

So, the decision is ruling that the "exclusive remedy" pursuant to the workers' compensation law relates to the determination of whether the accident was covered by the workers' compensation law and policy. In this instance, the issue before the Court is to determine if the Defendant complied with the N.Y.S. Insurance Law pertaining to the timely payment or denial of the claim pursuant to the No-Fault insurance policy. This issue is distinguishable from the arguments raised by the Defendant and their reliance upon Seigel.

The Plaintiff's opposition to the motion relies on Westchester Med. Ctr. v. American Tr. Ins. Co. (60 AD3d 848 [2d Dept., 2009]) to argue that that the Claimant must pay or deny the claim within 30 days. However, this Court finds that the Westchester decision did not reach that conclusion. Rather, the Court in Westchester Med. Ctr. ruled that American Transit Insurance Company's timely verification request determined the claim was covered under a worker's compensation policy and therefore, the denial of the No-Fault insurance claim was proper. In that instance, the insurer complied with the 30-day rule (11 NYCRR 65-[3.8])^[FN2] and the Court ruled in the insurer's favor. That was not the case in this instance.

The Plaintiff's opposition also argues that the Defendant failed to raise the defense of eligibility under the worker's compensation policy in a timely denial.

The No-Fault regulations require the insurer to pay or deny a claim for No-Fault insurance benefits within 30-days of the receipt of the claim (11 NYCRR 65-3.8, referred to as the "30-day rule"). The Appellate Division, Second Department has ruled that the "defendant's possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a workers compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be a timely service of the disclaimer." (Westchester Medical Center v. Lincoln General Ins. Co., 60 AD3d 1045 [2nd Dept., 2009], citing, 11 NYCRR §65-3.5[a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 N.Y3d 556, 663; remaining citations omitted). The Appellate Term ruled that, "since the defense of assignor's eligibility for worker's compensation benefits is subject to preclusion (citing, Westchester Med. Ctr. v Lincoln Gen,. Ins. Co.) defendant was required to demonstrate that it timely denied plaintiff's claims on said grounds within 30 days of their receipt" (A.B. Medical Services, PLLC v. American Transit Ins. Co., 24 Misc 3d 127(A) [App Term, 9th and 10th J.D., 2009]; citing Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 NY2d 274 at P.282 [1997]).

This Court has the subject matter jurisdiction to determine if the Defendant complied with the No-Fault law and insurance policy. The NYSWCB has the primary jurisdiction to determine if an accident is work related and determine all claims made pursuant to the workers' [*4]compensation insurance policy. The two are not mutually exclusive.

Pursuant to the No-Fault insurance regulations, the defense of workers' compensation coverage to a claim for No-Fault insurance benefits must be raised within 30-days of the receipt of the No-Fault insurance claim (11 NYCRR §65-3.8). In this instance, the Defendant did not offer any evidence of a timely denial or verification request with the motion to dismiss. Therefore, the Defendant did not demonstrate that it timely complied with the 30-day rule (11 NYCRR §65-3.8). It is alleged that the first time the Plaintiff became aware of the workers' compensation claim was in the Defendant's answer to the complaint in this action. As a result, the Defendant has failed to meet its prima facie burden of proof for the motion to dismiss.

The Court notes that if, after trial, the Defendant is found liable for the bill, the Defendant has the remedy of recovery for the payment of the bill from the workers compensation insurance carrier pursuant to WCL §13(d)(1).

Accordingly, the Defendant's motion to dismiss is denied, and the matter is referred for trial.

This is the decision and order of the Court.