Sovera Med. Supply Corp. v MVAIC (2023 NY Slip Op 51476(U))

Reported in New York Official Reports at Sovera Med. Supply Corp. v MVAIC (2023 NY Slip Op 51476(U))

Marshall & Marshall, PLLC (Angelique Evangelista and David Gierasch of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), dated October 7, 2022. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s motion for summary judgment dismissing the complaint.

Prior to the commencement of this action, the provider had submitted claims, involving the same assignor and the same motor vehicle accident, to arbitration. The arbitration was thereafter withdrawn without prejudice. However, “[b]y electing to arbitrate, the plaintiff waived [its] right to commence an action to litigate subsequent disputes over no-fault benefits to which [it] was allegedly entitled as a result of that accident” (Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005] [emphasis added]; see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Griffin v AIG, 121 AD3d 449 [2014]; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083 [1998]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [*2][“Plaintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident,” even though the prior arbitration was dismissed without prejudice]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [while prior arbitration was dismissed without prejudice, “once a claimant chooses arbitration, it cannot resort to the courts”]). Consequently, MVAIC’s motion for summary judgment dismissing the complaint should have been granted.

We reach no other issue.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

HOM, J.P., TOUSSAINT and BUGGS, JJ., concur.