April 6, 2011

Alev Med. Supply, Inc. v Progressive N. Ins. Co. (2011 NY Slip Op 50624(U))

Headnote

The court considered a dispute between Alev Medical Supply, Inc., as the assignee of Javon Battey, and Progressive Northern Insurance Company over the recovery of first-party no-fault benefits. After participating in a mandatory arbitration proceeding, the arbitrator found in favor of Alev Medical Supply, Inc. The insurance company then served and filed a demand for a trial de novo, which the plaintiff sought to strike. The plaintiff argued that the insurance company's attempt to establish its defense of lack of medical necessity through non-evidentiary submissions of counsel and failure to produce its doctor to testify amounted to a default, and therefore, the insurance company was not entitled to demand a trial de novo. The District Court denied the plaintiff's motion to strike the demand, and the Appellate Term affirmed the decision, citing a similar case as precedent. Therefore, the holding of the case was that the insurance company was entitled to demand a trial de novo despite its actions at the arbitration hearing.

Reported in New York Official Reports at Alev Med. Supply, Inc. v Progressive N. Ins. Co. (2011 NY Slip Op 50624(U))

Alev Med. Supply, Inc. v Progressive N. Ins. Co. (2011 NY Slip Op 50624(U)) [*1]

Alev Med. Supply, Inc. v Progressive N. Ins. Co.

2011 NY Slip Op 50624(U) [31 Misc 3d 134(A)]

Decided on April 6, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : TANENBAUM, J.P., MOLIA and LaCAVA, JJ
.

ALEV MEDICAL SUPPLY, INC. as Assignee of JAVON BATTEY, Appellant, NO~ 2010-914 N C
against
PROGRESSIVE NORTHERN INSURANCE COMPANY, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated March 22, 2010. The order denied plaintiff’s motion to strike defendant’s demand for a trial de novo.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, the parties participated in a mandatory arbitration proceeding (see Rules of the Chief Judge [22 NYCRR] part 28). Following the arbitration hearing, the arbitrator found in favor of plaintiff. Thereafter, defendant timely served and filed a demand for a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12). Plaintiff moved to strike the demand, asserting that, while defense counsel had appeared at the arbitration hearing, that appearance was tantamount to a default since defendant had attempted to establish its defense of lack of medical necessity through non-evidentiary submissions of counsel, and had not produced its doctor to testify. As a result, plaintiff contended, defendant was not entitled to demand a trial de novo (see Rules of the Chief Judge [22 NYCRR] § 28.12 [a]). The District Court denied plaintiff’s motion to strike defendant’s demand for a trial de novo, and this appeal by plaintiff ensued.

The order is affirmed (see B.Y., M.D., P.C. v Geico Indem. Co., 30 Misc 3d 132[A], 2011 NY Slip Op 50036[U] [App Term, 9th & 10th Jud Dists 2011]).

Tanenbaum, J.P., Molia and LaCava, JJ., concur. [*2]
Decision Date: April 06, 2011