Longevity Med. Supply, Inc. v. Travelers Indem. Co.

Longevity Med. Supply, Inc. v Travelers Indem. Co. (2022 NY Slip Op 50582(U)) [*1] Longevity Med. Supply, Inc. v Travelers Indem. Co. 2022 NY Slip Op 50582(U) [75 Misc 3d 138(A)] Decided on June 10, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on June 10, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2020-453 K C Longevity Medical Supply, Inc., as Assignee of Andre Taylor, Appellant, against Travelers Indemnity Co., Respondent. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Law Offices of Tina Newsome-Lee (Kalman Miller and William Angstreich of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), dated February 4, 2020. The order held defendant's motion for summary judgment dismissing the complaint and plaintiff's cross motion for summary judgment in abeyance pending an application by plaintiff to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law. ORDERED that the appeal is dismissed. In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon plaintiff's assignor's alleged eligibility for workers' compensation benefits and plaintiff cross- moved for summary judgment. The Civil Court held the motions in abeyance pending an application by plaintiff to the Workers' Compensation Board to determine the parties' rights under the Workers' Compensation Law. Plaintiff appeals. The order appealed from did not decide defendant's or plaintiff's motions but instead held the motions in abeyance pending plaintiff seeking a determination from the Workers' Compensation Board as to whether plaintiff's assignor had been acting in the course of his employment at the time of the accident and whether, therefore, workers' compensation benefits might be available (see O'Rourke v Long, 41 NY2d 219, 225 [1976]). Thus, the order is not appealable as of right (see CCA 1702 [a] [2]; Acunto v Stewart Ave. Gardens, LLC, 26 AD3d 305 [2006]; Daily Med. Equip. Distrib. Ctr., Inc. v Global Liberty Ins., 58 Misc 3d 127[A], 2017 NY Slip Op 51710[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]) and, under the circumstances, we decline to grant leave to appeal. Accordingly, the appeal is dismissed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 10, 2022