—[*1] Brown & Kelly, LLP, Buffalo (Joseph M. Schnitter of counsel), for respondent-appellant.

Damon Morey LLP, Buffalo (Michael J. Willett of counsel), for petitioner-respondent.

Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered March 7, 2011 in a proceeding pursuant to CPLR article 75. The order, among other things, granted the petition to vacate an arbitration award.

It is hereby ordered that the order so appealed from is reversed on the law without costs, the petition is denied, the cross motion is granted and the arbitration award is confirmed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR 7511 (b) seeking vacatur of the arbitration award on the ground that arbitration was not available because under Insurance Law § 5105 (a) neither of the vehicles involved in the collision was “used principally for the transportation of persons or property for hire.” We conclude that Supreme Court erred in granting the petition to vacate the arbitration award and in denying the cross motion to confirm the award. Inasmuch as petitioner failed to apply for a stay of arbitration before arbitration, petitioner waived its contention that respondent’s claim for reimbursement of first-party benefits is not arbitrable under Insurance Law § 5105 (see Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]). In view of that waiver, petitioner may not thereafter seek to vacate the arbitration award on the ground that the arbitration panel exceeded its power (see id.; Matter of Utica Mut. Ins. Co. v Incorporated Vil. of Floral Park, 262 AD2d 565, 566 [1999]; see also Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]).

Were we to reach the issue whether respondent’s vehicle was used principally for the transportation of persons or property for hire under Insurance Law § 5105, we would agree with our dissenting colleagues that the appropriate standard of review is whether the award was arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). However, despite acknowledging that we must apply a deferential standard of review, the dissent proceeds to conduct, with laser-like precision, a comprehensive legal analysis of the statutory phrase “vehicle used principally for the transportation of persons or [*2]property for hire” (§ 5105). In reaching a legal conclusion as to the appropriate definition to be assigned to the subject phrase, the dissent relies upon eight different definitions of or references to the phrase “vehicle for hire,” which the dissent concedes arise in “other [statutory or legal] contexts.” Notably, none of those definitions or references relied upon by the dissent was raised during arbitration or on appeal.

As the court recognized, petitioner has “contended from the outset that there is no legal or factual basis here for loss transfer pursuant to [Insurance Law § ] 5105,” and we disagree with the dissent’s conclusion that “at no point during the course of the proceedings in this matter did petitioner take the position that the claim was not arbitrable.” Indeed, in addition to labeling its defense as one for “lack of jurisdiction,” petitioner twice asserted in the arbitration that it was “not subject to the loss transfer procedure.” Thus, we have no difficulty concluding that petitioner took the position that the claim was not arbitrable. In concluding that the phrase assigned to petitioner’s defense (lack of jurisdiction) is not dispositive, our dissenting colleagues fail to offer any explanation of what was otherwise meant thereby. Moreover, the dissent’s reliance on Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund (47 AD3d 633 [2008]) is misplaced because, unlike here, the petitioner in Progressive “at no point during the course of the proceedings . . . [took] the position that the arbitration panel lacked jurisdiction or that the . . . claim was not arbitrable” (id. at 634 [emphasis added]). Thus, that case does not support the dissent’s position that petitioner, despite labeling its defense as one for “lack of jurisdiction,” did not assert that the claim was not arbitrable.

Both the dissent and the court disregard controlling precedent of this Court in determining that petitioner’s contention was not waived (see Liberty Mut. Ins. Co., 234 AD2d 901). The doctrine of stare decisis “recognizes that legal questions, once resolved, should not be reexamined every time they are presented” (Dufel v Green, 198 AD2d 640, 640 [1993], affd 84 NY2d 795 [1995]). ” ‘The doctrine . . . rests upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes’ ” (People v Taylor, 9 NY3d 129, 148 [2007], quoting People v Bing, 76 NY2d 331, 338 [1990], rearg denied 76 NY2d 890 [1990]). Stare decisis ” ‘is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process’ ” (id.; see People v Damiano, 87 NY2d 477, 488-489 [1996] [Simons, J., concurring]; Baden v Staples, 45 NY2d 889, 892 [1978]).

Here, this Court has previously held that, by failing to apply for a stay before arbitration, an insurer waives the contention that the claim is not arbitrable under Insurance Law § 5105 (Liberty Mut. Ins. Co., 234 AD2d 901). In the instant matter, the court acknowledged our decision in Liberty Mut. Ins. Co., but concluded that it was overruled by Motor Veh. Acc. Indem. Corp. (89 NY2d 214). That was error. Indeed, the Court of Appeals in Motor Veh. Acc. Indem. Corp. did not hold that insurers are precluded from obtaining judicial review of the threshold question of whether a claim was subject to loss-transfer arbitration under section 5105. Rather, the courts of this State have long recognized that a court has the power to resolve the threshold question whether a loss-transfer arbitration should be stayed under CPLR article 75 (see Matter of State Farm Mut. Auto Ins. Co. v Aetna Cas. & Sur. Co.132 AD2d 930, 931 [1987], affd 71 NY2d 1013 [1988]; City of Syracuse v Utica Mut. Ins. Co., 90 AD2d 979 [1982], affd 61 NY2d 691 [1984]; Utica Mut. Ins. Co., 262 AD2d 565; Liberty Mut. Ins. Co., 234 AD2d 901).

Motor Veh. Acc. Indem. Corp. (89 NY2d 214), also relied upon by the dissent as a basis for concluding that the award is arbitrary and capricious, involved an “erroneous application of the Statute of Limitations” by the arbitrator (id. at 224). In concluding that such an error of law was not arbitrary and capricious as a matter of law, the Court in Motor Veh. Acc. Indem. Corp. [*3]noted the varying interpretations of the limitations rule by the courts. Here, there is a paucity of decisions interpreting the phrase “for hire” in the Insurance Law § 5105 context, and our own decision on this point noted that the statute is “inartfully drafted” and does not limit the universe of vehicles embraced thereby to “taxis and buses, and livery vehicles” (State Farm Mut. Auto. Ins. Co., 132 AD2d at 931). Therefore, even assuming, arguendo, that we could reach the issue, we would conclude that, under the circumstances presented, it cannot be said that the arbitration panel’s award was arbitrary and capricious or was unsupported by any reasonable hypothesis (see Motor Veh. Acc. Indem. Corp., 89 NY2d at 224).

All concur except Peradotto and Sconiers, JJ., who dissent and vote to affirm in the following memorandum.

Peradotto and Sconiers, JJ. (dissenting).We respectfully dissent. Unlike the majority, we conclude that petitioner did not waive its contention that the vehicle owned by its insured and involved in the subject accident was not “used principally for the transportation of persons or property for hire” within the meaning of Insurance Law § 5105 (a). We further conclude that there is no evidentiary support or rational basis for the arbitration panel’s determination that the at-issue vehicle—a minivan owned by a nonprofit community residence for developmentally disabled individuals and used by its employees to transport the six residents of the group home—is a vehicle “for hire” under that section.

Petitioner’s insured, Rivershore, Inc. (Rivershore), is a private, nonprofit organization that provides residential and community support services to individuals with developmental disabilities. Rivershore operates several state-funded community residences for people with disabilities, including a residence on 17th Street in Niagara Falls. On May 11, 2009, Rivershore employee Thomas Beckhorn, a night program manager at the 17th Street residence, was on his way to pick up one of the residents from her mother’s home when he was involved in a motor vehicle accident with a vehicle owned by Mary D. Farmel and operated by Cheryl K. French. French sustained injuries in the accident. At the time of the accident, Beckhorn was operating a minivan owned by Rivershore and insured by petitioner. The Farmel vehicle was insured by respondent. After paying first-party personal injury protection (first-party) benefits to and on behalf of French, respondent filed an application for inter-company arbitration, seeking reimbursement of those benefits from petitioner pursuant to the loss-transfer provisions of Insurance Law § 5105. In a contentions sheet submitted to the arbitration panel, petitioner contended that it was “not subject to the loss[-]transfer procedure because not one of the vehicles in the accident weighed more than 6,500 lbs. and/or neither vehicle was used principally for transportation of persons or property for hire.” In an amended contentions sheet, petitioner specifically contended that the minivan operated by Beckhorn weighed between 5,001 and 6,000 pounds, and that it was not used for the transportation of persons or property for hire. Rather, petitioner asserted that the minivan “was used in the course of providing general services to a disabled person, services that are regularly provided by Rivershore[ ] . . . to its developmentally disabled residents.”

The arbitration panel determined that the Rivershore minivan “meet[s] the definition of a livery for this loss” and awarded respondent the full amount of the first-party benefits respondent had paid to French. Petitioner then commenced this proceeding seeking to vacate the arbitration award pursuant to CPLR 7511 (b) on the ground that the award was without evidentiary support or rational basis and thus was arbitrary and capricious insofar as the arbitration panel determined that the minivan was a vehicle for hire within the meaning of Insurance Law § 5105. Respondent cross-moved to confirm the award. Supreme Court granted the petition, denied the cross motion, and vacated the arbitration award on the ground that the arbitrators “acted irrationally and without an evidentiary basis” in concluding that the minivan was “used principally for the transportation of persons or property for hire” (§ 5105). We would affirm. [*4]

As relevant here, Insurance Law § 5105 (a) provides that “[a]ny insurer liable for the payment of first[-]party benefits . . . which another insurer would otherwise be obligated to pay . . . but for the provisions of th[e No Fault Statute]” has a “right to recover [those benefits] . . . only if at least one of the motor vehicles involved . . . [weighs] more than [6,500] pounds unloaded or is . . . used principally for the transportation of persons or property for hire” (emphasis added). Thus, the right to recovery under that statute’s loss-transfer provision is limited to accidents in which one of the involved vehicles (1) exceeds 6,500 pounds, or (2) transports persons or property “for hire.” The Legislature amended section 5105 (a) in 1977 to add those alternative conditions with the intention of “limit[ing] the right of insurance carriers to recover first-party payments” (Matter of State Farm Mut. Auto. Ins. Co. v Aetna Cas. & Sur. Co., 132 AD2d 930, 931 [1987], affd 71 NY2d 1013 [1988]; see Matter of Progressive Northeastern Ins. Co. [New York State Ins. Fund], 56 AD3d 1111, 1112 [2008], lv denied 12 NY3d 713 [2009]). Pursuant to section 5105 (b), “mandatory arbitration is the sole remedy regarding disputes between insurers over responsibility for payment of first-party benefits” (State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]; see also NY St Ins Dept 2005 Circular Letter No. 10, RE: PIP [No-fault] inter-company loss transfer procedures [“If there is a dispute with respect to a claim arising pursuant to [s]ection 5105, the sole remedy of any insurer or compensation provider is via the submission of the controversy to a mandatory arbitration program”]).

Contrary to the contention of respondent and the conclusion of the majority, we conclude that at no point during the course of the proceedings in this matter did petitioner assert that the claim was not arbitrable, i.e., that the arbitrators lacked the authority to adjudicate the claim (see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]; cf. Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]). During arbitration, petitioner did not object to proceeding in the arbitral forum or contend that the claim was not subject to arbitration, and does not so contend on appeal. Rather, petitioner asserted on the merits that respondent could not recover pursuant to the loss-transfer provisions of Insurance Law § 5105 because neither vehicle involved in the accident weighed more than 6,500 pounds or was used principally for the transportation of persons or property for hire. Thus, petitioner’s “participation in the arbitration proceeding without first moving for a stay of arbitration did not constitute a waiver of its contention that the [minivan] was not . . . [a vehicle for hire] within the meaning of . . . [section] 5105” (Progressive Cas. Ins. Co., 47 AD3d at 634). The fact that petitioner’s contentions sheet labeled its defense as one for “lack of jurisdiction” is not dispositive of the issue whether petitioner asserted that the claim was not arbitrable. The substance of petitioner’s contention, i.e., that the minivan did not qualify as a vehicle for hire, “is a condition precedent to ultimate recovery [under section 5105], not a condition precedent to ‘access to the arbitral forum‘ ” (id., quoting Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980] [emphasis added]; see Progressive Northeastern Ins. Co., 56 AD3d at 1112). In light of the broad scope of the mandatory arbitration provision in Insurance Law § 5105 (b), we conclude that petitioner properly submitted the issue whether the minivan was a “vehicle . . . for hire” to the arbitration panel for determination (§ 5105 [a]; see Progressive Cas. Ins. Co., 47 AD3d at 634) and, arguably, had no choice but to do so (see § 5105 [b]; Paxton Natl. Ins. Co. v Merchants Mut. Ins. Co., 74 AD2d 715, 716 [1980], affd 53 NY2d 646 [1981] [“Arbitration provides the sole remedy in loss transfer between insurers and the arbitration panel is the proper forum . . . for the determination of all questions of law and fact which may arise in connection with the remedy that respondent seeks”]).

With respect to the merits, “[w]here, as here, the parties are obligated by statutory mandate to submit their dispute to arbitration (see Insurance Law § 5105 [b]), the arbitrator’s determination is subject to ‘closer judicial scrutiny’ than with voluntary arbitration” (Progressive Northeastern Ins. Co., 56 AD3d at 1113, quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758 [1980]). “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Motor Veh. Acc. Indemn. Corp., 89 NY2d at 223). Further, “article 75 review questions whether the decision was rational or had a plausible basis” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]; see Progressive Cas. Ins. Co., 47 AD3d at 634).

It was respondent’s burden, as the party seeking reimbursement, to establish its right to recovery under Insurance Law § 5105 (a) (see Progressive Northeastern Ins. Co., 56 AD3d at 1112; see also Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]). Here, we conclude not only that respondent failed to meet its burden, but we also conclude that there is no evidentiary support or rational basis for the arbitrators’ determination that the minivan was principally used to transport persons “for hire,” a condition precedent to respondent’s entitlement to reimbursement under section 5105 (a) (see Progressive Northeastern Ins. Co., 56 AD3d at 1113). As this Court held in State Farm Mut. Auto Ins. Co. (132 AD2d at 931), “the words ‘for hire’ modify the word ‘vehicle’ and . . . the statute covers only those vehicles hired to transport people, such as taxis and buses, and livery vehicles hired to transport property” (emphasis added). We agree with the court that, under the circumstances of this case, “the Rivershore minivan cannot be categorized as or even likened to a taxi or bus.”

The term “vehicle for hire” is commonly understood and defined in other contexts as a vehicle held out to the public for the provision of transportation services in exchange for a fee (see generally Penal Law § 60.07 [2] [b] [defining ” ‘for-hire vehicle’ ” as “a vehicle designed to carry not more than five passengers for compensation and such vehicle is a taxicab, . . . a livery, . . . or a ‘black car’ “]; Vehicle and Traffic Law § 121-e [defining “livery” as “(e)very motor vehicle, other than a taxicab or a bus, used in the business of transporting passengers for compensation”]; Vehicle and Traffic Law § 401 [5-a] [a] [ii] [defining “motor vehicle operated for hire” as “mean(ing) and includ(ing) a taxicab, livery, coach, limousine or tow truck”]; Ops Gen Counsel NY Ins Dept No. 01-01-11 [Jan. 2001] [“The phrase ‘a motor vehicle used principally for the transportation of persons or property for hire’ refers to vehicles hired to transport people and livery vehicles hired to transport property”]). Such vehicles are typically operated by drivers who are required to have a particular certification or license, and are subject to specialized licensing, insurance, safety, and other requirements (see e.g. Vehicle and Traffic Law § 148-a [defining a “taxicab” as “[e]very motor vehicle, other than a bus, used in the business of transporting passengers for compensation, and operated in such business under a license or permit issued by a local authority”]; Vehicle and Traffic Law § 370 [1] [requiring filing of indemnity bond or insurance policy by every person or entity “engaged in the business of carrying or transporting passengers for hire in any motor vehicle”]; Vehicle and Traffic Law § 375 [23] [“Every motor vehicle operated for hire upon the public highways of this state shall be equipped with handles or other devices which shall permit the door or doors to the passenger compartment to be readily opened from the interior of the vehicle”]; see generally Vehicle and Traffic Law § 498 [governing interjurisdictional pre-arranged for-hire vehicle operations]).

The evidence before the arbitration panel in this case consisted of the deposition testimony of Beckhorn, the driver of the minivan, and material from Rivershore’s website. Such evidence establishes that Rivershore is not in the business of transporting members of the public for compensation, and that the Rivershore minivan was not used for that purpose. Rivershore’s website states that it supports 12 state-funded community residences for individuals with developmental disabilities, and “serves many more people in their private homes throughout Niagara County.” In addition to its residential services, Rivershore “provides life planning services, clinical services, and support with employment and volunteer pursuits.” Beckhorn testified that he worked at the 17th Street community residence as a nighttime program manager, and that, at the time of the accident, he was driving to pick up one of the residents from [*5]her mother’s house. Beckhorn testified that he was not specifically hired to pick up the resident; rather, transporting residents of the group home was only one of his many duties as a program manager. Beckhorn did not charge a fare, and he was not paid per trip. Further, the record establishes that Beckhorn possessed a “regular” driver’s license and that the minivan bore passenger plates rather than livery or commercial license plates.

In determining that the minivan constituted a vehicle for hire under Insurance Law § 5105 (a), the arbitrators relied upon Beckhorn’s testimony that he “was going to pick up one of Rivershore’s customers,” as well as materials from Rivershore’s website, which, according to the arbitrators, “proves that [Rivershore] offers a series of services for their customers . . . [including] transportation to appointments.” Beckhorn’s testimony, however, establishes that he was on his way to pick up not simply a “customer[ ]” of Rivershore; rather, he was picking up a resident of the 17th Street community residence in a minivan used by Rivershore staff for group home purposes. With respect to Rivershore’s website, none of the materials submitted to the arbitration panel refer to Rivershore’s provision of transportation services, let alone the transportation of customers “for hire.” The portion of the website relied upon by the arbitrators applies to Rivershore’s individualized service environment program, which is “designed for people who live in their own apartment or house, or in a family dwelling” (emphasis added), not for individuals who live in a community residence. In any event, even if that program was involved here, the website does not state that Rivershore provides transportation services to program participants. Rather, it states that “[h]ighly trained staff will visit [participants’] home[s] and provide supports to help [them] achieve [their] goals, which are specific and individualized to [each participant]. These supports include assisting [participants] in completing all necessary daily activities, assisting [them] with attending any needed medical appointments, and gaining further independence, productivity and inclusion in [their] community” (emphasis added).

In sum, the record establishes that the Rivershore minivan was not held out to the community as a vehicle transporting people “for hire.” To the contrary, the minivan was assigned to the 17th Street community residence for the exclusive purpose of assisting the six individuals who live there with activities of daily living, i.e., shopping, attending events, family visits, etc. The driver of the minivan was not hired for the purpose of providing transportation and did not possess a specialized license to provide transportation services; rather, he was hired to provide residential services to the residents of the group home that, from time to time, included driving them to various activities. We therefore conclude that the arbitration panel’s determination that the at-issue minivan was “used principally for the transportation of persons . . . for hire” lacks evidentiary support or a rational basis, and thus that the court properly vacated the arbitration award on that ground (Insurance Law § 5105 [a]; see generally Progressive Northeastern Ins. Co., 56 AD3d at 1113-1114; Progressive Cas. Ins. Co., 47 AD3d at 634). Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered December 14, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted with respect to all of plaintiff’s claims other than plaintiff’s claim for $261.60 for services rendered on November 12, 2007 and plaintiff’s claim for $33.70 for services rendered on September 5, 2008; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s claims had been timely denied for lack of medical necessity based upon an independent medical examination (IME) performed on March 22, 2008.

Defendant established that the claim denial forms annexed to its motion, which denied [*2]the claims at issue based upon a lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted a sworn March 22, 2008 IME report which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for any chiropractic treatment rendered after March 22, 2008. Plaintiff did not rebut defendant’s prima facie showing.

Accordingly, defendant was entitled to summary judgment dismissing so much of the complaint as sought to recover upon those claims for services rendered after March 22, 2008 for which defendant established that it had timely denied the claims. However, as to plaintiff’s claim for $261.60 for services rendered on November 12, 2007, defendant failed to establish
a lack of medical necessity for those services, which were rendered before the March 22, 2008 IME. Finally, defendant’s motion failed to address plaintiff’s claim for $33.70 for services
rendered on September 5, 2008. Thus, defendant failed to establish that it had timely denied that claim.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is granted with respect to all of plaintiff’s claims other than plaintiff’s claim for $261.60 for services rendered on November 12, 2007 and plaintiff’s claim for $33.70 for services rendered on September 5, 2008.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered October 14, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing the sixth through tenth causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court properly denied the branches of defendant’s cross motion seeking summary judgment dismissing the sixth through tenth causes of action as there is a triable issue
of fact regarding the medical necessity of the acupuncture services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is affirmed.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 8, 2010. The order granted defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that arbitration was the proper forum for this dispute because a claim by a different provider of no-fault benefits, as the assignee of the same assignor and arising from the same accident, had already been arbitrated (citing In the Matter of the Arbitration between Alexander Berenblit, M.D./Donald Joachim and Allstate Insurance Company) or, in the alternative, that the award from that arbitration, in which the arbitrator had found that plaintiff’s assignor had failed to appear for an examination under oath (EUO) and, thus, had failed to comply with a condition precedent to coverage, should be given collateral [*2]estoppel effect. The Civil Court granted defendant’s motion on the ground that “a claim for this assignor and accident had been previously submitted to the American Arbitration Association” and, therefore, “a forum has already been chosen” (citing Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]).

A prior arbitration proceeding involving one claimant provider seeking reimbursement of assigned first-party no-fault benefits does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even where the claims have been assigned by the same individual and have arisen from the same accident (see Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21, 23 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]; cf. Roggio, 66 NY2d 260 [holding that a claimant who elected to arbitrate disputed claims for first-party no-fault benefits waived the right to commence an action to litigate subsequent claims arising from the same accident]). Since the arbitration proceeding upon which the court relied had been commenced by a different provider, Alexander Berenblit, M.D., not plaintiff herein, the complaint was improperly dismissed on the ground that arbitration was the proper forum for this dispute.

We reject defendant’s alternative ground for its motion as well. Defendant failed to demonstrate that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for an EUO, and therefore that it is not precluded from asserting its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Furthermore, the doctrine of collateral estoppel applies only against those who were either a party, or in privity with a party, to a prior proceeding (Russell v New York Cent. Mut. Fire Ins. Co., 11 AD3d 668 [2004]). As it has not been demonstrated that plaintiff was a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d, 11th & 13th Jud Dists 2010]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d at 23).

Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered October 21, 2010, deemed from a judgment of the same court entered October 29, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered October 21, 2010 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, so much of the order entered October 21, 2010 as granted defendant’s cross motion for summary judgment
dismissing the complaint is vacated, and defendant’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In support of its cross motion for summary judgment, defendant established that it had [*2]timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. Moreover, defendant submitted two sworn peer review reports which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue. However, in support of its motion for summary judgment, plaintiff submitted an affirmed letter of medical necessity from the treating chiropractor, which demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, defendant’s cross motion should have been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]). We note that defendant’s objection on appeal to the fact that plaintiff’s submission was affirmed, not sworn, was waived, as defendant failed to raise that objection in the Civil Court (see Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 29 Misc 3d 137[A], 2010 NY Slip Op 52022[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is reversed, so much of the order as granted defendant’s cross motion for summary judgment dismissing the complaint is vacated, and defendant’s cross motion for summary judgment is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 8, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third [*2]causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811, and denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811.

The affidavits submitted by defendant in support of its cross motion were sufficient to establish that defendant had timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) plaintiff’s claims at issue, based upon the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the claims for acupuncture services billed under CPT codes 97810 and 97811, in accordance with the workers’ compensation fee schedule (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first through third causes of action as to claims bearing CPT codes 97810 and 97811 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action and so much of plaintiff’s first cause of action as sought to recover for claims bearing CPT codes 97810 and 97811 are granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered December 4, 2009. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006, and denied the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006.

ORDERED that the order, insofar as appealed from, is reversed, without costs, the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are granted. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 and denied the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006.

In support of its cross motion, defendant submitted an affidavit by an employee of its claims division which was sufficient to establish that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to plaintiff’s claims for acupuncture services rendered from August 16 through October 25, 2006, defendant demonstrated that it had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). With respect to plaintiff’s claims for acupuncture services rendered from October 26, 2006 through December 11, 2006, defendant submitted a sworn independent medical examination (IME) report which concluded that there was a lack of medical necessity for those services. An affidavit by plaintiff’s acupuncturist submitted in opposition to defendant’s cross motion failed to meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In view of the foregoing, defendant was entitled to summary judgment on the branches of its cross motion seeking summary judgment dismissing plaintiff’s claims for acupuncture services rendered from August 16 through December 11, 2006. Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff’s motion seeking summary judgment upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing the complaint [*3]
insofar as it sought to recover upon all of plaintiff’s claims other than plaintiff’s claim for services rendered on August 15, 2006 are granted.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 9, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007 is granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branches of its cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from June 7, 2007 through October 3, 2007.

In support of its cross motion, defendant submitted affidavits by employees of its claims [*2]division, which were sufficient to establish that defendant had timely denied the claims of plaintiff Gentle Care Acupuncture, P.C. (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) for dates of service June 7, 2007 through September 19, 2007, on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule, and that defendant had fully paid plaintiff for the services billed for in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Since defendant fully paid the amount to which plaintiff Gentle Care Acupuncture, P.C. was entitled for acupuncture services rendered from June 7, 2007 through September 19, 2007, the branches of defendant’s cross motion for summary judgment seeking to dismiss plaintiff Gentle Care Acupuncture, P.C.’s claims for these dates of service should have been granted.

Defendant also timely denied plaintiff Gentle Care Acupuncture, P.C.’s claims for acupuncture services rendered from September 24, 2007 through October 3, 2007, based upon an independent medical examination (IME) performed by defendant’s acupuncturist, who found a lack of medical necessity for further acupuncture services. The IME report, which was accompanied by the examining acupuncturist’s affidavit, concluded that the assignor’s injuries had resolved and that there was no need for further acupuncture treatment. Although plaintiff submitted, in opposition to the cross motion, an “Affidavit of Medical Necessity” of its licensed acupuncturist, that affidavit did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME report (see Gentle Care Acupuncture, P.C. v Geico Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52226[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Eastern Star Acupuncture, P.C. v Mercury Ins. Co., 26 Misc 3d 142[A], 2010 NY Slip Op 50380[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff Gentle Care Acupuncture, P.C.’s claims for services rendered from September 24, 2007 through October 3, 2007 should have been granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 12, 2010. The order granted defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground of collateral estoppel.

Collateral estoppel is a specific form of res judicata which bars “a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “In order to invoke the doctrine, the identical issue must necessarily have been decided in the prior action or proceeding and be decisive of the present action or proceeding, and the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” [*2](Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777, 778 [2008]; see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). Furthermore, the party seeking to rely on collateral estoppel has the burden of establishing that the issue actually litigated and determined in the prior action is identical to the issue on which preclusion is sought (see Forcino v Miele, 122 AD2d 191, 193 [1986]; Concord Delivery Serv., Inc. v Syossot Props., LLC, 19 Misc 3d 40, 43 [App Term, 9th & 10th Jud Dists 2008]). The party attempting to defeat the application of collateral estoppel has the burden of establishing the absence of a full and fair opportunity to litigate (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Uptodate Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 23 Misc 3d 42, 44 [App Term, 2d, 11th & 13th Jud Dists 2009]).

In the case at bar, defendant established that the issue whether the assignor’s injuries arose “out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) was identical to the issue previously decided by the jury in an earlier personal injury action which plaintiff’s assignor had commenced against defendant’s insured. In support of its motion, defendant submitted a copy of the verified complaint from the prior action, in which it was alleged that defendant’s insured “struck” plaintiff’s assignor with her car, a transcripted copy of the jury verdict, in which the jury determined that the vehicle of defendant’s insured never made “contact” with plaintiff’s assignor, and a copy of the judgment dismissing the prior action. Thus, defendant demonstrated that plaintiff was ineligible to receive reimbursement of no-fault benefits because the assignor’s injuries did not result from an insured incident (see Central Gen. Hosp., 90 NY2d at 199).

Accordingly, the order is affirmed.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012