Citation Numbers: 159 Misc. 2d 390, 604 NYS2d 1022
Judges: Grow
Filed Date: 9/10/1992
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Plaintiff, by a summary judgment motion in this declaratory
Plaintiff sustained injuries in an auto accident on December 9, 1990 while a passenger in a vehicle operated by Ethel Colon and which vehicle was insured by defendant. Plaintiff had also sustained injuries in a prior auto accident occurring in March 1990. The March 1990 accident disabled him from employment until December 10, 1990, at which time his physician authorized him to return to work as a machine operator at Oneida Molded Plastics Corporation (Oneida). The December 1990 accident then disabled him from employment until June 17, 1991. Subsequent to his second (December 9, 1990) accident, Mr. Colon applied for no-fault medical benefits from the policy issued by defendant, and he apparently has received those benefits.
However, his application for lost wage benefits was denied, the basis of the denial being that prior to the December 9th accident he either voluntarily quit his employment or was terminated by reason of misconduct. (See, Labor Law § 593 [1], [3].) In support of it’s denial of wage benefits, defendant submits a letter and a deposition from the vice-president, administration, of Oneida. That evidence reveals that Colon was terminated from his employment on September 3, 1990 as a "quit”. Plaintiff denies he quit his employment and that he was ready and able to return to work, as authorized by his physician, on December 10, 1990, but was prevented from doing so because of his December 9th accident.
The medical leave portion of the employee’s handbook issued by Oneida provides, "If you do not return to work at the end of your leave of absence, you will be removed from the active payroll.” That language cannot be interpreted to mean the employee "quit” if he is physically unable to return to work following a medical leave of absence. Plaintiff was disabled on September 3, 1990, the date Oneida alleges his medical leave expired, and the date his employment was terminated. There is no evidence to substantiate that plaintiff either voluntarily separated from his employment or was terminated by reason of misconduct. (Labor Law § 593 [1], [3].)
11 NYCRR 65.15 (o) (2), entitled "Loss of earnings”, provides
Plaintiff became unemployable as a result of injuries sustained in the December 10, 1990 accident. Since these injuries rendered him ineligible to receive unemployment benefits, he is entitled to no-fault lost wage benefits pursuant to the above-cited regulation. (See also, State Farm Mut. Auto. Ins. Cos. v Brooks, 78 AD2d 456.)
Plaintiff has met his burden by submitting proof in admissible form to demonstrate his entitlement to the relief he seeks. Plaintiff’s motion is granted. Defendant’s cross motion is denied.