Law Office of Goldstein, Flecker & Hopkins (Lawrence J. Chanice of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered April 3, 2019. The order, insofar as appealed from, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3216

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved in March 2018 to dismiss the complaint on the ground that defendant had not been served with a notice of trial within 90 days of defendant’s service upon plaintiff’s attorney’s office manager, on September 11, 2017, of a 90-day demand (see CPLR 3216). By order entered April 3, 2019, the Civil Court (Odessa Kennedy, J.), among other things, denied defendant’s motion, finding that defendant had not served the 90-day demand in compliance with CPLR 3216 (b) (3).

The Civil Court should not have denied defendant’s motion on the ground that the 90-day notice was not served in compliance with the statute. Plaintiff did not make that argument in opposition to defendant’s motion, did not dispute receipt of the 90-day demand and did not make the required showing of prejudice (see Balancio v American Opt. Corp., 66 NY2d 750 [1985]; Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021 [2009]).

Upon receipt of a 90-day demand, a plaintiff must either comply with the demand by [*2]filing a notice of trial within 90 days thereafter (see CPLR 3216 [b] [3]; [c]) or move before the default date either to vacate the demand or to extend the 90-day period pursuant to CPLR 2004 (see Felix v County of Nassau, 52 AD3d 653 [2008]; Katina, Inc. v Town of Hempstead, 13 AD3d 343 [2004]; A.M. Med., P.C. v State Farm Mut. Ins. Co., 22 Misc 3d 43 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, since plaintiff did not file a notice of trial within 90 days after its receipt of the 90-day demand and had not moved prior thereto to vacate the demand or to extend the 90-day period, it was required, in opposition to defendant’s motion to dismiss, to establish both a justifiable excuse for its delay and the existence of a meritorious cause of action (see CPLR 3216 [e]; Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]; Lee v Rad, 132 AD3d 643 [2015]; Felix, 52 AD3d 653; A.M. Med., P.C., 22 Misc 3d 43).

While a court, in its discretion, may accept a claim of law office failure as an excuse (see CPLR 2005), here, the affidavit submitted by plaintiff’s attorney’s office manager in opposition to defendant’s motion did not provide a detailed and credible explanation of the law office failure that had caused the delay (see Silver Acupuncture, P.C. v GEICO Indem. Co., 69 Misc 3d 128[A], 2020 NY Slip Op 51134[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Faith Acupuncture, P.C. v Government Empls. Ins. Co., 63 Misc 3d 156[A], 2019 NY Slip Op 50829[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Premier Surgical Servs., P.C. v Allstate Ins. Co., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). The office manager’s affidavit set forth her firm’s policy to the effect that, upon receipt of a 90-day demand, the demand is given to a paralegal to enter such receipt in the firm’s computer system. The office manager further stated that, in the instant case, there is no such entry in the computer system. However, there was no affidavit submitted by the paralegal and no explanation as to why there was none forthcoming. In any event, the office manager failed to explain what happened to the 90-day demand or why plaintiff did not respond to it. Consequently, plaintiff’s claim of law office failure did not rise to the level of a justifiable excuse. In view of the foregoing, it is unnecessary to consider whether plaintiff demonstrated the existence of a meritorious cause of action (see generally Levi v Levi, 46 AD3d 519 [2007]; Premier Surgical Servs., P.C., 58 Misc 3d 160[A], 2018 NY Slip Op 50273[U]).

Accordingly, the order, insofar as appealed from, is reversed, and defendant’s motion to dismiss the complaint pursuant to CPLR 3216 is granted.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Decision Date: December 11, 2020

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Richmond County (Lisa Grey, J.), entered September 20, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits for injuries the assignor sustained in a motor vehicle accident in New York on June 5, 2015, defendant moved for summary judgment dismissing the complaint on the ground that the South Carolina automobile insurance policy was fraudulently procured by the assignor, who is also the insured, based on alleged misrepresentations which she had made on her application for insurance. By order entered September 20, 2018, the Civil Court, applying the substantive law of South Carolina (see Portfolio Recovery Assoc., LLC v King, 14 NY3d 410 [2010]), denied defendant’s motion. We note that no issue is raised on appeal regarding the applicability of South Carolina law.

South Carolina allows an insurance company to rescind an automobile insurance policy ab initio under certain circumstances (see Strickland v Prudential Ins. Co., 278 SC 82, 86-87, 292 SE2d 301, 304 [1982]). In order for an insurance company to be entitled to summary judgment dismissing the complaint based on a rescission, ab initio, of the policy issued in a sister state, the insurance company “has the burden of establishing that it complied with the law of the [*2]sister state which permits retroactive rescission” (Delta Diagnostic Radiology, P.C. v Infinity Group, 49 Misc 3d 42, 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see Parisien v Omni Indem. Co., 67 Misc 3d 141[A], 2020 NY Slip Op 50725[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Craigg v Infinity Select Ins. Co., 38 Misc 3d 56 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Upon a review of the record, we find that the papers defendant submitted in support of its motion for summary judgment dismissing the complaint failed to establish its prima facie entitlement to judgment as a matter of law, as it did not show that defendant had complied with the requirements of South Carolina Code Annotated § 38-75-730 (b).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

Glinkenhouse Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant. Jaffe & Velasquez, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered April 3, 2018. The order denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered January 12, 2017 and, sua sponte, vacated the January 12, 2017 judgment.

ORDERED that so much of the appeal as is from the portion of the order as sua sponte vacated the January 12, 2017 judgment is dismissed; and it is further,

ORDERED that so much of the appeal as is from the portion of the order as denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered January 12, 2017 is dismissed as moot.

This action by a provider to recover assigned first-party no-fault benefits for claims submitted to defendant in 1999, was settled in 2009. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 12, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). By order entered April 3, 2018, the Civil Court denied plaintiff’s motion and, sua sponte, vacated the January 12, 2017 judgment, finding that, because of plaintiff’s “delay” in entering judgment, plaintiff was not entitled to any [*2]prejudgment statutory no-fault interest (but see Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

The portion of the order which vacated the January 12, 2017 judgment did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but the record before us does not indicate that plaintiff has made such a motion.

Since the January 12, 2017 judgment has been vacated, plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in that judgment is moot. We note, however, that claims submitted before April 5, 2002 are governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the appeal is dismissed.

WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, November 27, 2020

APPEARANCES OF COUNSEL

Glinkenhouse, Floumanhaft & Queen, by Glinkenhouse Queen (Alan Queen and Stephen J. Green of counsel), for appellant.

Jaffe & Velazquez, LLP (Jean H. Kang of counsel) for respondent.

Ordered that the appeal is dismissed.

This action by a provider to recover assigned first-party no-fault benefits was settled by a two-attorney stipulation dated June 16, 2003. Defendant did not pay the settlement amount, and a judgment was entered on January 12, 2017, pursuant to CPLR 5003-a. Plaintiff subsequently moved, pursuant to CPLR 5019 (a), in effect, to correct the January 12, 2017 judgment by recalculating the interest. By order entered February 20, 2018, the Civil Court granted the motion, but, sua sponte, stayed the accrual of statutory no-fault interest from June 16, 2003, through February 22, 2017. Plaintiff appeals from so much of the order as, sua sponte, stayed the accrual of interest.

The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but plaintiff failed to make such a motion.

With respect to the position of the dissenting justice, we submit that deeming the appeal [*2]as something other than an improper appeal without permission should not be done{**71 Misc 3d at 13} routinely, particularly as there have been numerous such appeals made without permission in cases similar to this.

Accordingly, the appeal is dismissed.

Weston, J. (dissenting and voting to, on the court’s own motion, treat the notice of appeal as an application for leave to appeal and grant leave, and, thereupon, to reverse the order, insofar as appealed from, and to vacate so much of the order as stayed the accrual of statutory no-fault interest, in the following memorandum). This is yet another case in which this court has had to address the Civil Court’s sua sponte stay of the accrual of statutory no-fault interest. While it may be expedient to dismiss the appeal, in my opinion, plaintiff’s notice of appeal should be treated as a motion for leave to appeal and such leave granted. Alternatively, plaintiff’s motion may be treated as a motion to resettle the judgment, and the court’s order, which materially changed the prior judgment, is appealable (see Weksler v Weksler, 81 AD3d 401 [2011]; Gormel v Prudential Ins. Co. of Am., 151 AD2d 1048 [1989]). Upon granting leave, I would reverse so much of the order as stayed the accrual of no-fault statutory interest.

This action by a provider to recover assigned first-party no-fault benefits was settled in June 2003. Defendant did not pay the settlement amount, and a judgment was subsequently entered on January 12, 2017, pursuant to CPLR 5003-a. Plaintiff appeals from so much of an order of the Civil Court entered February 20, 2018, as sua sponte stayed the accrual of no-fault statutory interest from June 16, 2003, through February 22, 2017.

The Civil Court erred in staying interest from the date of the settlement of the action to the date when the motion was made. Once the case settled, defendant was obligated to pay the agreed-upon amount to plaintiff (see CPLR 5003-a) and “plaintiff, as the prevailing party, was not required to make a demand for the money” (B.Z. Chiropractic, P.C. v Allstate Ins. Co., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see CPLR 5003-a [e]). Defendant did not demonstrate that plaintiff had prevented defendant in any way from paying the settlement amount (see ERHAL Holding Corp. v Rusin, 252 AD2d 473, 474 [1998]; Juracka v Ferrara, 120 AD2d 822 [1986]; Craniofacial Pain Mgt. v Allstate Ins. Co., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 {**71 Misc 3d at 14}NY Slip Op 51091[U]). Therefore, the Civil Court erred in tolling the accrual of interest (see Craniofacial Pain Mgt., 61 Misc 3d 155[A], 2018 NY Slip Op 51825[U]; B.Z. Chiropractic, P.C., 56 Misc 3d 139[A], 2017 NY Slip Op 51091[U]).

Accordingly, the order, insofar as appealed from, should be reversed, and so much of the order as stayed the accrual of statutory no-fault interest from June 16, 2003, through February 22, 2017, should be vacated.

Aliotta and Siegal, JJ., concur; Weston, J.P., dissents in a separate memorandum.

[*1]

Goldberg, Miller & Rubin P.C., New York (Eli Shmulik and Harlan R. Schreiber of counsel), for appellant.

The Rybak Firm PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about November 1, 2019, which denied summary judgment on plaintiff’s first cause of action for a declaration disclaiming coverage for no-fault benefits sought by defendants-respondents Jules Francois Parisien, M.D. and SP Orthotic Surgical & Medical Supply, Inc., unanimously reversed, on the law, with costs, the motion granted, and it is declared that plaintiff has no coverage obligation for no-fault benefits sought by the defendants-respondents. The Clerk is directed to enter judgment accordingly.

Where, as here, the insurer submits evidence of a medical provider claim (NF-3), the timely request for an independent medical examination (IME) of the injured claimant within 15 days of the receipt of that claim, and the injured claimant is a no-show at two duly noticed IMEs, the basis for disclaimer of coverage is established, as a matter of law, and summary judgment is properly awarded to the insurer with respect to further coverage obligations and reimbursement of outstanding medical bills with respect to all treating providers (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). Concur—Renwick, J.P., Kapnick, Gesmer, Kern, JJ.

Decided on November 20, 2020

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

Glinkenhouse, Floumanhaft & Queen (Alan Queen of counsel), for appellant. Jaffe & Velazquez, LLP (Jean H. Kang of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (David M. Hawkins, J.), entered August 1, 2018. The order denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered April 17, 2017 and, sua sponte, vacated the April 17, 2017 judgment.

ORDERED that so much of the appeal as is from the portion of the order as sua sponte vacated the April 17, 2017 judgment is dismissed; and it is further,

ORDERED that so much of the appeal as is from the portion of the order as denied plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in a judgment of that court entered April 17, 2017 is dismissed as moot.

This action by a provider to recover assigned first-party no-fault benefits for a claim for services rendered in 1999 was settled in 2008. Defendant did not pay the settlement amount, and a judgment was entered on April 17, 2017 (see CPLR 5003-a) awarding statutory no-fault interest at a simple rate (see 11 NYCRR 65-3.9 [a], effective April 5, 2002). Plaintiff moved, pursuant to CPLR 5019 (a), to have the interest recalculated at a compound rate (see former 11 NYCRR 65.15 [h] [1]). By order entered August 1, 2018, the Civil Court denied plaintiff’s motion and, sua sponte, vacated the April 17, 2017 judgment, finding that, because of plaintiff’s “delay” in entering judgment, plaintiff was not entitled to any prejudgment statutory no-fault interest (but see Seaside Rehabilitation v Allstate Ins. Co., 63 Misc 3d 162[A], 2019 NY Slip Op 50918[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

The portion of the order which vacated the April 17, 2017 judgment did not address a demand for relief made on notice and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v Meagher, 100 NY2d 333 [2003]; [*2]Active Care Med. Supply Corp. v Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; see Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see also CCA 1702 [a] [3]), but the record before us does not indicate that plaintiff has made such a motion.

Since the April 17, 2017 judgment has been vacated, plaintiff’s motion to recalculate, from a simple rate to a compound rate, an award of statutory no-fault interest in that judgment is moot. We note, however, that claims submitted before April 5, 2002 are governed by the former regulations providing for compound interest (see Belt Parkway Imaging, P.C. v State Wide Ins. Co., 30 Misc 3d 127[A], 2010 NY Slip Op 52229[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

156859/2019

Short & Billy, P.C., New York, NY (Christopher E. O’Donnell of counsel), for plaintiff.

Samandarov & Associates, P.C., Floral Park, NY (David M. Gottlieb of counsel), for defendant.

Plaintiff, American Transit Insurance Company, brought this action under Insurance Law § 5106 (c) to obtain a de novo adjudication of the entitlement to no-fault insurance benefits of defendant, Surgicore of Jersey City LLC. Surgicore moves to dismiss part of American Transit’s claim for benefits under CPLR 3211 (a) (2), arguing that this court lacks subject-matter jurisdiction over that aspect of the claim. The motion is denied.

BACKGROUND

In July 2017, Surgicore’s assignor, Jose Velazquez, was allegedly involved in a motor-vehicle collision. In October 2017, a Surgicore physician performed surgery on Velazquez’s right shoulder and right knee, allegedly to treat injuries suffered in the July 2017 collision. In [*2]preparation for the surgery, another Surgicore physician administered a nerve block to nerves in Velazquez’s right shoulder and arm.

Surgicore sought insurance reimbursement for the nerve block and the surgery. American Transit, concluding that these procedures were not medically necessary, denied reimbursement. Surgicore then brought two no-fault arbitration proceedings (one for the nerve block, one for the surgery) to challenge the denial of its reimbursement claim.

An arbitrator held a hearing at which Surgicore’s claims in the two proceedings were considered together. The arbitrator concluded, in very similar decisions issued the same day, that Surgicore failed to support adequately its lack-of-medical necessity defense as to either the nerve block or the surgery. The arbitrator therefore awarded the amounts claimed by Surgicore at the hearing—$517.89 for the nerve block and $25,962.93 for the surgery—plus interest and attorney fees. American Transit sought review of these decisions before a master arbitrator. The master arbitrator, in very similar decisions issued the same day, affirmed the arbitration awards in their entirety.

American Transit then brought this action, seeking a de novo adjudication under Insurance Law 5106 (c) of the award to Surgicore of $517.89 and $25,962.93 for the procedures performed on Velazquez. Surgicore moves to dismiss under CPLR 3211 (a) (2) and (a) (7).

DISCUSSION

Insurance Law § 5106 (c) provides that the award of a master arbitrator in a no-fault arbitration proceeding “shall be binding . . . provided . . . that where the amount of such master arbitrator’s award is five thousand dollars or greater, exclusive of interest and attorney’s fees, the insurer or the claimant may institute a court action to adjudicate the dispute de novo.”

Here, as a formal matter, there are two awards issued by the master arbitrator—one, for the pre-operative nerve block, plainly under the $5,000 threshold; and one, for the operation itself, plainly over the $5,000 threshold. Surgicore argues that this court lacks subject-matter jurisdiction over American Transit’s de novo challenge to the master arbitrator’s award of $517.89 (plus interest and fees) for the nerve block,^[FN1] and therefore that this aspect of American Transit’s action must be dismissed.^[FN2] This court is not persuaded by Surgicore’s argument.

To be sure, this court agrees with Surgicore that § 5106 (c)’s reference to a “master arbitrator’s award,” singular, must be given effect. A plaintiff may not, therefore, “aggregate[e] various [arbitral] awards in order to meet the statutory minimum” of $5,000.^[FN3] (Repwest Ins. Co. v Advantage Radiology, P.C., Index No. 156431/2012, 2013 WL 5924820, at *1 [Sup Ct, NY County Oct. 29, 2013].) That principle, though, is not sufficient to resolve this case.

It is undisputed that the two claims for reimbursement at issue here arose from treatments performed on one day on one patient-assignor by staff of one medical-provider assignee in connection with one operation. It is also undisputed that after American Transit denied the claims, Surgicore’s arbitral challenges to those denials were considered at the same hearing by one arbitrator and decided by that arbitrator on the same day for the same reasons; and that American Transit’s requests for review of those decisions were decided on the same day for the same reasons by one master arbitrator.

This court concludes that in these circumstances, the master arbitrator’s award of $517.89 for the pre-operation nerve block and of $25,962.93 for the operation itself are properly considered a single, unified “award” for purposes of the de-novo-challenge provision of Insurance Law § 5106 (c). Separating these two monetary awards for § 5106 purposes, merely because Surgicore chose to assert its two claims for reimbursement in separate arbitrations, would exalt form over substance to no purpose. And Surgicore provides no reason why they should be separated—instead simply taking it as given that they are separate.

Surgicore argues that several prior decisions issued by justices of this court demonstrate that Surgicore’s claims for reimbursement must be considered separately for purposes of § 5106 (c)’s $5,000 threshold. Those decisions, however, present a materially different factual scenario: they each involve multiple patients, multiple providers, or both.^[FN4] Those decisions are thus [*3]distinguishable because, unlike here, they do, in substance, involve multiple benefits awards rather than a single, unitary award.

Finally, Surgicore argues that this court should defer to the view expressed via email by a senior attorney at the Department of Financial Services that the language of § 5106 (c) “precludes the stacking or linking of awards in the first instance.” (NYSCEF No. 9 at 2, quoting NYSCEF No. 10, at 1.) Setting aside whether this email, standing alone, warrants deference, the email’s conclusion does not resolve the issue presented by this motion. The question posed to the DFS attorney was whether “an insurer is permitted to ‘consolidate’ arbitration awards” to meet the $5,000 statutory threshold. (NYSCEF No. 10 at 2.) Unsurprisingly, the DFS attorney’s response was that “stacking or linking of awards” to meet the statutory threshold is not permitted. (Id. at 1.) But that response does not address the key issue on this motion—whether the master arbitrator’s decisions here should be deemed to have made separate awards in the first place.

This court concludes that the master arbitrator’s decisions, properly understood, constituted a single arbitral award for purposes of the $5,000 threshold of Insurance Law § 5106 (c). The amount of that award, $26,480.52, exceeds the statutory threshold. American Transit’s de novo challenge to the award under § 5106 (c) therefore states a cause of action.

Accordingly, it is hereby

ORDERED that Surgicore’s motion to dismiss under CPLR 3211 is denied.

DATE 11/19/2020

Footnotes

Footnote 1:The $5,000 threshold imposed by Insurance Law § 5106 (c) is phrased in terms of when an insurer or claimant “may institute a court action” seeking de novo adjudication, rather than when Supreme Court or Civil Court may hear a de novo challenge. This threshold is thus perhaps better understood as a limit on the § 5106 cause of action rather than on the scope of the court’s subject-matter jurisdiction over § 5106 actions. The Appellate Division, First Department, has not had occasion to address this issue, however; and the Second Department has referenced it only in passing dicta. (See Avenue C. Med., P.C. v Encompass Ins. of MA, 130 AD3d 764, 764 [2d Dept 2015].) Although this distinction is not necessarily academic—a cause-of-action defense is waivable, for example, whereas a jurisdictional defense is not—it does not affect the resolution of the motion to dismiss in the current case.

Footnote 2:Surgicore’s motion papers are ambiguous as to whether it seeks dismissal only of American Transit’s de novo challenge to the $517.89 nerve-block award, or dismissal of the entire action. Since American Transit’s de novo challenge to the $25,962.93 surgery award plainly may be maintained in this court, this court construes Surgicore’s motion as addressed only to the challenge to the nerve-block award.

Footnote 3:American Transit argues, citing the Court of Appeals’ decision in Matter of Greenberg v Ryder Truck Rental, Inc. (70 NY2d 573 [1987]), that multiple awards can be challenged de novo in the same action as long as they are part of the same dispute between insurer and claimant (and the aggregate amount of those awards is over $5,000). (See NYSCEF No. 18 at 5-6.) But in Matter of Greenberg, the issue was limited to whether a de novo challenge asserted after the award of damages in a single, bifurcated arbitration proceeding also brought up for review the arbitrator’s liability determination made at the first stage of the bifurcated proceeding. The Court held that if the $5,000 threshold is satisfied, a de novo challenge encompasses both the arbitral award and the prior, predicate liability determination in the arbitration proceeding. (See 70 NY2d at 576-577.) That holding, though, did not resolve whether a de novo challenge to an award over $5,000 in one arbitral proceeding can also bring up for review awards made in other, related arbitral proceedings—as opposed to determinations made at an earlier stage of the same proceeding.

Footnote 4:See NYSCEF No. 9 at 3, citing Imperium Ins. Co. v Innovative Chiropractic Servs., P.C. (2014 NY Slip Op 50697[U] [App Term 2014]); Decision & Order, Hereford Ins. Co. v Iconic Wellness Surgical Servs., LLC, Index No. 157166/2018, NYSCEF No. 35 (Jan. 29, 2019). See also NYSCEF No. 22 at 1, citing Decision & Order, American Transit Ins. Co v Health Plus Surgery Ctr., LLC, Index No. 156988/2019, NYSCEF No. 18 (Feb. 7, 2020). Accord Decision & Order, American Transit Ins. Co. v HealthPlus Surgery Ctr., LLC, Index No. 155561/2019, NYSCEF Nos. 21, 24 (Mar. 2, 2020) (multiple providers); Repwest, 2013 WL 5924820, at *1 (addressing claims for benefits assigned by “nine parties injured in three separate automobile accidents”).

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Samandarov & Associates, P.C., Floral Park (David M. Gottlieb of counsel), for respondents.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 15, 2020, which denied the petition to vacate a master arbitration award, dated June 17, 2019, affirming the no-fault arbitrator’s award of no-fault benefits to respondents, and dismissed the proceeding brought pursuant to CPLR article 75, unanimously affirmed, without costs, and the matter remanded to Supreme Court for a determination of respondents’ reasonable attorneys’ fees for this appeal.

The no-fault arbitrator found that petitioner’s vague and conclusory explanation that the denial was based on an independent medical examination which did not support reimbursement, without providing any of the examination’s findings, or checking boxes on the NF-10 form to indicate that the denial was based on a lack of medical necessity, was insufficient. The master arbitrator reviewed the no-fault arbitrator’s determination and the parties’ submissions, and confirmed the no-fault arbitrator’s award of benefits to respondent assignees. Supreme Court, reviewing the findings of the master and no-fault arbitrators, correctly found that the award was rational, and was not arbitrary and capricious (see Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]; Matter of Rose Castle Redevelopment II, LLC v Franklin Realty Corp., 184 AD3d 230, 234 [1st Dept 2020]; Azrielant v Azrielant, 301 AD2d 269, 275 [1st Dept 2002], lv denied 99 NY2d 509 [2003]). Petitioner’s vague declination of benefits lacked the degree of specificity required by statute and case law, which provide that insurers must clearly inform applicants of their position regarding disputed matters by “appris[ing] the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; see 11 NYCRR 65-3.2 [e]). Respondents are entitled to reasonable attorneys’ fees for this appeal, to be determined by Supreme Court (see Matter of Country-Wide Ins. Co. v Bay Needle Acupuncture, P.C., 167 AD3d 404 [1st Dept 2018]; 11 NYCRR 65-4.10 [j] [4]). Concur—Webber, J.P., González, Scarpulla, Shulman, JJ.

Decided on November 13, 2020

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