June 28, 2012

Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2012 NY Slip Op 51294(U))

https://www.beynensonlaw.com/case-law/alev-med-supply-inc-v-allstate-prop-cas-ins-co-2012-ny-slip-op51294u/

Court: Appellate Term, Second Department
Decided: June 28, 2012
Citation: 2012 NY Slip Op 51294(U) · 36 Misc 3d 132(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata Timeliness and preclusion EUO no-show
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132(A), 2012 NY Slip Op 51294(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

One provider's arbitration does not bar another provider's action on claims assigned by the same person and arising from the same accident. The insurer sought dismissal based on another provider's arbitration election or collateral estoppel from an award finding the assignor's EUO nonappearance. The Appellate Term, Second Department, distinguished Roggio v Nationwide Mut. Ins. Co. because this provider had not elected arbitration. The insurer also failed to establish timely denial on the EUO ground, failing to show that its defense was not precluded, and failed to show that the provider was a party or in privity with a party to the arbitration, defeating collateral estoppel. The order was reversed and the insurer's motion to dismiss denied.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2012 NY Slip Op 51294(U))

[*1]

Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co.

2012 NY Slip Op 51294(U) [36 Misc 3d 132(A)]

Decided on June 28, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 28, 2012

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

PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2010-3343 Q C.

Alev Medical Supply, Inc. as Assignee of DONALD JOACHIM, Appellant, —
against
Allstate Property & Casualty Insurance Co., Respondent.

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

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial (rules on the question, but another ground decided the case)

Rejected the insurer's alternative EUO no-show ground because it failed to show it timely denied the claims on that ground, and so failed to show it was not precluded from asserting the defense.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 21359) FollowedA provider's arbitration election does not bar another provider from suing for benefits arising from the same accident.
A.B. Med. Servs. PLLC v USAA Gen. Indem. Co. (2005 NY Slip Op 25297) FollowedA provider's election to arbitrate no-fault claims does not bar another provider from litigating claims arising from the same accident.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 20130) FollowedThe provider was not collaterally estopped by default declaratory judgments in actions where it was neither a party nor in privity.

Cited by

A label shows how the later decision treated this one.

Right Aid Med. Supply Corp. v MVAIC (2020 NY Slip Op 50882(U)) FollowedThe provider's MVAIC claim was premature because it showed no effort to identify the striking vehicle's owner or operator from its license plate.
WJ Acupuncture, P.C. v Nationwide Mut. Ins. (2012 NY Slip Op 51648(U)) FollowedThe insurer failed to establish that the providers were parties to, or in privity with a party to, an earlier arbitration.
Utopia Equip., Inc. v Maya Assur. Co. (2016 NY Slip Op 50463(U))The provider's renewal motion failed because a later decision did not constitute a change in law altering the prior determination.
Dayna Physical Therapy, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50322(U))The provider's claims were not barred by the assignor's election to arbitrate because the assignment preceded that election.

Similar decisions

Queens Arthroscopy & Sports Medicine v Unitrin Direct Ins. Co (2013 NY Slip Op 52021(U))The provider was not bound by its assignor's coverage arbitration because the assignment preceded that proceeding and the provider was not a party.
Alev Med. Supply, Inc. v American Tr. Ins. Co. (2012 NY Slip Op 52271(U))The provider's complaint was dismissed after it failed to show compliance with an order requiring a workers' compensation application.
Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
Arco Med. NY, P.C. v AIG Indem. Ins. Co. (2014 NY Slip Op 51257(U))The insurer established timely mailing of the IME notices and denials and the assignor's failure to appear for the scheduled IMEs. The providers sought assigned no-fault benefits, and the insurer moved for summary judgment on the claims denied for IME nonappearance.
Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51289(U))The provider's claim was barred by collateral estoppel because a prior jury verdict resolved whether the injuries arose from an insured incident.