Central Radiology Servs., P.C. v First Am. Ins., 2013 NY Slip Op 51031(U)(App. Term 2d Dept. 2013)
[There was some discussion regarding procedural issues. All I would note that is you are seeking to dismiss based upon a personal jurisdiction defense, make sure that is the relief that you seek; not for leave to to be allowed to defend the case on the merits]
“Defendant failed to demonstrate a meritorious defense as it did not submit adequate proof to raise a question of fact regarding whether the assignor had been acting within the course of her employment when the accident had occurred. The affidavit of defendant’s third-party claims administrator merely alleged in a conclusory manner that the assignor “was injured during the course of her employment and therefore, workers’ compensation was primary for this loss,” without substantiating this assertion with any evidence”
If this was a cab or livery issue, carrier should have put a declarations page, police report or some other corroborative proof to allow the case to be kicked to the board.
2 Responses
American Transit has been submitting same or similar proofs for years and have been getting away with it. Whats required is not only the Dec Page and the police report but extrinsic evidence showing the person was actually employed at the time of the accident and was during the course of employment and not on frolic or using the car for ones own personal business. Maybe the Term will finally require the Workers’ Comp defense be proven by actual evidence in admissable form.
A certified copy of the police report? Never seen one.