Claim of Roa v. American Transit Insurance

— Appeal from a decision of the Workers’ Compensation Board, filed April 28, 1982, which denied an application for reopening. American Transit Insurance Company became liable to claimant for first-party benefits under the no-fault provisions of the Insurance Law for personal injuries sustained by him while driving a taxicab owned by King Gene Cab Corporation on February 2, 1981. After a hearing, claimant’s compensation claim was disallowed on a finding that no employer-employee relationship existed. The no-fault carrier’s request to reopen the case was denied, giving rise to this appeal. There should be an affirmance. In Matter of Lotito v Salt City Playhouse (66 AD2d 437), this court determined that a no-fault insurer is not a party in interest in a compensation case, notwithstanding the fact that workers’ compensation benefits are offset against its liability pursuant to subdivision 2 of section 671 of the Insurance Law. While we recognized the existence of a “statutory gap” pertaining to the no-fault insurer’s inability to litigate the issue of workers’ compensation coverage, we further noted that this was a matter for the Legislature and the Superintendent of Insurance to rectify, not the courts {id., at pp 439-440; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 73). As the no-fault carrier concedes in its brief, to date no modification has been made. Nor are we persuaded by the carrier’s attempt to factually distinguish this case from Matter of Lotito (supra). The carrier’s assertion that the referee’s denial of the compensation claim was solely motivated by a desire to preserve the Uninsured Employers’ Fund is without support in the record. Accordingly, since the no-fault insurance carrier has no enforceable interest in the workers’ compensation award other than restitution, the board’s determination was neither erroneous as a matter of law nor an arbitrary and capricious exercise of discretion. Decision affirmed, without costs. Mahoney, P. J., Sweeney, Main, Casey and Weiss, JJ., concur.