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February 4, 2014

Matter of Kane v Fiduciary Ins. Co. of Am. (2014 NY Slip Op 00593)

https://www.beynensonlaw.com/case-law/matter-of-kane-v-fiduciary-ins-co-of-am-2014-ny-slip-op00593/

Court
Appellate Division, First Department
Decided
February 4, 2014
Citation
2014 NY Slip Op 00593 · 114 AD3d 405
Posture
Article 75 petition
Outcome
Insurer prevailed
Issues
CPLR article 75 (arbitration awards) Timeliness and preclusion Policy issues
Legal questions
Court review of arbitration awards (see the maps)
Cite as
Matter of Kane v Fiduciary Ins. Co. of Am., 114 AD3d 405 (1st Dept 2014)

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.

The insurer's coverage-priority disclaimer did not repudiate the policy or excuse the claimant's untimely proof of claim. The compulsory arbitration awards rejected the injured claimant's claim for failure to comply with conditions precedent under 11 NYCRR 65-1.1 and 65-2.4 (c). The claimant had not submitted timely written proof describing the nature and extent of the injuries and treatment received and contemplated. The disclaimer was not sufficiently absolute or unequivocal to constitute repudiation. Finding the awards neither irrational nor contrary to settled law, the Appellate Division, First Department, reversed the order vacating them and directing a new arbitration, and reinstated the awards in the insurer's favor.

Reported in New York Official Reports at Matter of Kane v Fiduciary Ins. Co. of Am. (2014 NY Slip Op 00593)

Matter of Kane v Fiduciary Ins. Co. of Am.
2014 NY Slip Op 00593 [114 AD3d 405]
February 4, 2014
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 26, 2014
In the Matter of Gaoussou Kane, Respondent,
v
Fiduciary Insurance Company of America, Appellant.

—[*1] Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Budin, Reisman, Kupferberg & Bernstein, LLP, New York (Harlan S. Budin of counsel), for respondent.

Order, Supreme Court, New York County (Carol E. Huff, J.), entered April 30, 2012, which granted the petition to vacate the arbitration awards, and remanded the matter for a new arbitration before a new arbitrator, unanimously reversed, on the law, without costs, and the arbitration awards reinstated.

The arbitral awards, rendered in compulsory arbitration, were not irrational or contrary to settled law, and therefore should have been confirmed. Respondent insurer’s disclaimer, based strictly upon primacy of coverage, was not so absolute or unequivocal as to constitute a repudiation of the policy (see Seward Park Hous. Corp. v Greater N.Y. Mut. Ins. Co., 43 AD3d 23, 30 [1st Dept 2007]). The arbitrators were therefore correct that petitioner was required, but failed, to comply with the conditions precedent to coverage found in the implementing no-fault regulations. He did not submit timely written proof of claim to the insurer, including the particulars regarding the nature and extent of the injuries and treatment received and contemplated (11 NYCRR 65-1.1, 65-2.4 [c]).

We have considered the parties’ remaining arguments and find them unavailing. Concur—Friedman, J.P., Acosta, Renwick, Manzanet-Daniels and Gische, JJ.

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.

Court review of arbitration awards

Open the full map

When does a court vacate, modify or confirm a no-fault arbitrator’s or master arbitrator’s award under CPLR article 75?

This decision: No ground for vacatur or modification shown: the award is confirmed or left in place

Reinstated the compulsory arbitration awards because they were not irrational or contrary to settled law: the primacy-based disclaimer was no repudiation, so the claimant had to, but did not, submit timely written proof of claim.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 34
  • Appellate TermApp Term 9
  • Trial courtsTrial 11
2010, Court of Appeals: 1 decision (1 Award stands)2023, Appellate Division: 3 decisions (1 Award stands, 1 Vacated: irrational/arbitrary, 1 Vacated: exceeded power)2021, Appellate Division: 1 decision (1 Award stands)2020, Appellate Division: 4 decisions (2 Award stands, 1 Vacated: irrational/arbitrary, 1 Remanded, undecided)2019, Appellate Division: 5 decisions (2 Award stands, 3 Vacated: irrational/arbitrary)2018, Appellate Division: 3 decisions (3 Award stands)2017, Appellate Division: 3 decisions (1 Award stands, 2 Vacated: irrational/arbitrary)2016, Appellate Division: 4 decisions (2 Award stands, 2 Vacated: irrational/arbitrary)2015, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2014, Appellate Division: 1 decision (1 Award stands)2024, Appellate Division: 3 decisions (3 Award stands)2026, Appellate Division: 2 decisions (2 Award stands)2009, Appellate Division: 1 decision (1 Award stands)2010, Appellate Division: 2 decisions (1 Award stands, 1 Vacated: irrational/arbitrary)2022, Appellate Term: 1 decision (1 Vacated: exceeded power)2019, Appellate Term: 3 decisions (3 Award stands)2018, Appellate Term: 1 decision (1 Award stands)2017, Appellate Term: 1 decision (1 Remanded, undecided)2016, Appellate Term: 1 decision (1 Remanded, undecided)2011, Appellate Term: 1 decision (1 Remanded, undecided)2009, Appellate Term: 1 decision (1 Vacated: irrational/arbitrary)2022, Trial courts: 1 decision (1 Award stands)2021, Trial courts: 1 decision (1 Vacated: irrational/arbitrary)2018, Trial courts: 1 decision (1 Award stands)2015, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2008, Trial courts: 1 decision (1 Award stands)2006, Trial courts: 2 decisions (1 Award stands, 1 Vacated: exceeded power)2005, Trial courts: 1 decision (1 Award stands)2024, Trial courts: 1 decision (1 Award stands)2025, Trial courts: 1 decision (1 Award stands)This decision
20052010201520202025
Award standsVacated: irrational/arbitraryVacated: exceeded powerRemanded, undecidedThis decisionCites it or cited by itCited or followed

Of the 55 decisions on this question in the First Department courts and the Court of Appeals, 34 (this one included) are in the same category.

Cited by

  • Sunrise Acupuncture PC v ELRAC, Inc. (2016 NY Slip Op 50905(U))The provider failed to justify submitting claims more than a year after services, despite initially sending them to MVAIC by mistake.
  • Matter of Floral Park Drugs, Inc. v Nationwide Gen. Ins. Co. (2024 NY Slip Op 01114)The pharmacy's arbitration loss was upheld because non-electronic prescriptions failed to satisfy statutory requirements.
  • Pro-Align Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50341(U))The insurer's coding evidence established full payment under the fee schedule for the provider's pain fiber nerve conduction studies.
  • Tian Shan Acupuncture PC v Global Liberty Ins. Co. (2019 NY Slip Op 50728(U))The insurer established timely IME requests and denials and the assignor's failure to appear for two IMEs. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice, denied its remaining grounds as moot, and denied the provider's cross motion.
  • Alsaad Med., P.C. v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op50532(U))A provider's failure to attend duly scheduled EUOs defeats coverage even when the insurer's denial is untimely.
  • Sabodash v Hereford Ins. Co. (2021 NY Slip Op 51099(U))The insurer failed to establish its lack-of-coverage defense with admissible proof that it did not insure the assignor's vehicle.

Similar decisions

  • Matter of Global Liberty Ins. Co. of N.Y. v Avangard Supply, Inc. (2020 NY Slip Op 06855)An insurer's vague IME-based denial supported a rational arbitration award of no-fault benefits to the providers.
  • Matter of Ameriprise Ins. Co. v Kensington Radiology Group, P.C. (2020 NY Slip Op 00500)An arbitration award exceeding policy limits may be challenged with evidence first submitted when confirmation is sought.
  • Matter of New Millennium Pain & Spine Medicine, P.C. v Progressive Cas. Ins. Co. (2023 NY Slip Op 05369)An insurer's duties cease upon payment of the contractual limit of its no-fault policy.
  • Ameriprise Ins. Co. v Kensington Radiology Group, P.C. (2017 NY Slip Op 51911(U))The insurer's policy declarations and payment ledger raised a triable issue of exhaustion before its obligation to pay the claims arose.
  • Matter of O’Neill v GEICO Ins. Co. (2018 NY Slip Op 04328)The SUM award denying benefits for lack of accident-related causation was rational, supported by evidence, and not arbitrary or capricious.
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