A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2012 NY Slip Op 50764(U)(App. Term 2d Dept. 2012)
“Plaintiffs appealed from so much of the order as denied without prejudice their motion for summary judgment and held the action in abeyance. On appeal, by order dated June 18, 2009, this court modified the District Court’s order “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” (A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75, 76 [App Term, 9th & 10th Jud Dists 2009]; see LMK Psychological Servs., P.C. v American Tr. Ins. Co., 64 AD3d 752 [2009]).
Since plaintiffs did not demonstrate that a proper application for workers’ compensation benefits had been made in accordance with the Workers’ Compensation Law (see e.g. Workers’ Compensation Law § 33) within the time provisions set forth in this court’s order dated June 18, 2009, they failed to establish that they had complied with this court’s order. Accordingly, the order, insofar as appealed from, is affirmed.”
