Key Takeaway
Court rules dismissal with prejudice viable in workers compensation primacy cases when plaintiff fails to pursue Workers' Compensation Board determination within 90 days.
This article is part of our ongoing workers compensation coverage, with 23 published articles analyzing workers compensation issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
AR Med. Rehabilitation, P.C. v American Tr. Ins. Co., 2010 NY Slip Op 50708(U)(App. Term 2d Dept. 2010)
“…reversed without costs, the provision denying without prejudice defendant’s motion for summary judgment is stricken and defendant’s motion for summary judgment is remitted to the Civil 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 plaintiff fails to file proof with the Civil Court of such application within 90 days of the date of the order entered hereon, the Civil Court shall grant defendant’s motion for summary judgment dismissing the complaint unless plaintiff shows good cause why the complaint should not be dismissed.”
“In the instant case, contrary to plaintiff’s contention, defendant proffered sufficient evidence in admissible form of the alleged facts which gave rise to its contention that plaintiff’s assignor was acting as an employee at the time of the accident and that therefore workers’ compensation benefits were available (see e.g. Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145, 2007 NY Slip Op 51176 ; see also A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 ; cf. Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848 ). This issue must be resolved in the first instance by the Board (see O’Rourke v Long, 41 NY2d 219, 225 ; see also Infinity Health Prods., Ltd. v New York City Tr. Auth., 21 Misc 3d 136, 2008 NY Slip Op 52218 ; Response Equip., Inc. v American Tr. Ins. Co., 15 Misc 3d 145, 2007 NY Slip Op 51176).
Defendant’s motion should not have been denied without prejudice but, rather, should have been held in abeyance pending Board resolution. A prompt application to the Board, as set forth above, is required in order to determine the parties’ rights under the Workers’ Compensation Law (see LMK Psychological Serv., P.C. v American Tr. Ins. Co., 64 AD3d 752). Accordingly, we reverse the order, insofar as appealed from.”
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Note that the remedy for failure to apply to the board is dismissal with prejudice. This is a very severe remedy.
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Legal Context
Why This Matters for Your Case
New York's Workers' Compensation Law provides benefits to employees injured on the job, regardless of fault. The system covers medical treatment, lost wages (typically two-thirds of average weekly wages subject to a statutory maximum), and permanency awards for lasting disabilities. Claims are filed with the Workers' Compensation Board, where administrative law judges hear contested cases.
However, employers and their insurers frequently challenge claims through Independent Medical Examinations, surveillance investigations, and appeals to the Workers' Compensation Board panel. Attorney Jason Tenenbaum has represented injured workers throughout Long Island and New York City for over 24 years, handling everything from initial claim filings through Board hearings, Third Department appeals, and third-party personal injury lawsuits against property owners and contractors. This article provides the expert legal analysis that workers and practitioners need to navigate the complexities of New York workers' compensation law.
About This Topic
Workers Compensation Law in New York
New York's workers compensation system provides benefits for employees injured on the job, covering medical treatment, lost wages, and disability payments regardless of fault. But navigating the Workers Compensation Board process, understanding benefit calculations, and overcoming employer and insurer challenges requires experienced legal guidance. These articles analyze workers compensation case law, the intersection of workers comp with personal injury claims, and the procedural requirements that govern the system.
23 published articles in Workers Compensation
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a workers compensation matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
