Ortho Pro Labs, Inc. v American Tr. Ins. Co., 2009 NY Slip Op 52693(U)(App. Term 2d Dept. 2009)
“In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court, upon a motion by defendant for summary judgment dismissing the complaint, stayed the action pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law. The sole issue raised by plaintiff on appeal is whether defendant proffered sufficient evidence to demonstrate the existence of an issue of fact as to whether plaintiff’s assignor was injured while acting within the course of his employment.
The application for no-fault benefits form, which was signed by plaintiff’s assignor under penalty of perjury, states that the assignor was in the course of his employment when he was injured, an admission that is “sufficient to raise a question of fact as to whether the assignor was acting as an employee at the time of the accident. . ., which issue must be resolved in the first [*2]instance by the [Workers’ Compensation] Board”
According to this opinion, the admission of of an assignor is imputable to the assignee. Furthermore, this admission may be used as prima facie evidence in support of a motion for summary judgment. Compare, CPT Medical Service, P.C. v. Utica Insurance Company, 12 Misc.3d 237 (Civ. Ct. Queens Co. 2006). Very interesting.
