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August 18, 2016

St. Chiropractic, P.C. v Geico Gen. Ins. Co. (2016 NY Slip Op 26271)

https://www.beynensonlaw.com/case-law/st-chiropractic-p-c-v-geico-gen-ins-co-2016-ny-slip-op-26271/

Court
Appellate Term, Second Department
Decided
August 18, 2016
Citation
2016 NY Slip Op 26271 · 53 Misc 3d 59
Posture
Summary judgment
Outcome
Provider prevailed
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
Policy issues
Cite as
St. Chiropractic, P.C. v Geico Gen. Ins. Co., 53 Misc 3d 59 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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.

An option to arbitrate a no-fault dispute does not furnish a ground to dismiss a court action over that dispute. The provider sought unpaid benefits under a New Jersey automobile policy. New Jersey substantive law governed, but New York procedural law controlled. Neither New Jersey Statutes Annotated § 39:6A-5.1 (a), as implemented by New Jersey Administrative Code § 11:3-5.1 (a), nor the policy required mandatory dispute resolution. The insurer could exercise the arbitration option by moving to compel arbitration under CPLR 7503 (a), with a stay if granted, but had not done so. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at St. Chiropractic, P.C. v Geico Gen. Ins. Co. (2016 NY Slip Op 26271)

St. Chiropractic, P.C. v Geico Gen. Ins. Co.
2016 NY Slip Op 26271 [53 Misc 3d 59]
Accepted for Miscellaneous Reports Publication
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Friday, December 9, 2016

[*1]

St. Chiropractic, P.C., as Assignee of Marcus Baham, Respondent,
v
Geico General Insurance Company, Appellant.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, August 18, 2016

APPEARANCES OF COUNSEL

Law Office of Printz & Goldstein, Woodbury (Bryan P. Fauci of counsel), for appellant.

Law Offices of Ilona Finkelshteyn, P.C., Brooklyn (Marina Josovich of counsel), for respondent.

{**53 Misc 3d at 60} OPINION OF THE COURT

Memorandum.

Ordered that the order, insofar as appealed from, is affirmed, with $25 costs.

Plaintiff’s assignor was injured in a motor vehicle accident while riding in a vehicle which was insured by a New Jersey automobile insurance policy. Plaintiff commenced the instant action to recover, among other things, assigned first-party no-fault benefits for the services it had rendered to its assignor, alleging that its claims were unpaid. Thereafter, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. In support of its cross motion, defendant argued, among other things, that New Jersey law controlled, and that New Jersey law and the subject insurance policy required that the matter be submitted to arbitration. Defendant did not move to compel arbitration pursuant to CPLR 7503 (a). By order entered July 10, 2014, the Civil Court denied both motions, but limited the issue for trial to medical necessity, finding that plaintiff had established that the claims had been mailed to, and received by, defendant and had not been paid, that the substantive law of New Jersey controlled, that the court did not lack jurisdiction, and that arbitration is not mandatory under New Jersey law.{**53 Misc 3d at 61}

As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment, contending, among other things, that the complaint should have been dismissed because the Civil Court improperly determined that the insurance policy did not mandate dispute resolution.

Since the insurance policy at issue contains a provision that “[t]he policy and any amendments and endorsements are to be interpreted pursuant to the laws of the state of New Jersey,” the substantive law of New Jersey applies (see Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 50 Misc 3d 107, 108 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, New York’s procedural laws control. In Natural Therapy Acupuncture, P.C. and Bay Med. P.C., this court held that dispute resolution is not mandatory pursuant to New Jersey Statutes Annotated § 39:6A-5.1 (a), as implemented by New Jersey Administrative Code § 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273, 982 A2d 1, 2-3 [2009]), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute resolution upon the initiative of either party to the dispute. Similarly, the insurance policy in question provides that a matter may be submitted to dispute resolution “on [*2]the initiative of any party to the dispute.” However, the existence in a contract of an option to arbitrate in the event of a dispute is not a ground to dismiss the complaint in a court action based on that dispute. Rather, where one party commences a court action, the adverse party may seek to exercise the arbitration clause by moving to compel arbitration. If that motion is granted, the court stays the action pending arbitration (see CPLR 7503 [a]). Here, defendant has not moved to compel arbitration (see Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 50 Misc 3d 107 [2015]; Bay Med. P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U] [2013]). In view of the foregoing, we find no basis to disturb so much of the order as denied defendant’s cross motion for summary judgment dismissing the complaint.

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

Solomon, J.P., Aliotta and Elliot, JJ., concur.

Cited in this decision

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

  • Natural Therapy Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 25425) FollowedAn option to arbitrate no-fault disputes supports a stay upon a motion to compel arbitration, rather than dismissal of the action.
  • Bay Med. P.C. v Geico Ins. Co. (2013 NY Slip Op 52084(U)) FollowedA policy requiring interpretation under New Jersey law invokes that state's substantive law, rather than its conflict rules.

Cited by

A label shows how the later decision treated this one.

  • T & S Med. Supply Corp. v Ocean Harbor Cas. Ins. Co. (2018 NY Slip Op 50665(U)) FollowedThe insurer failed to prove mailing of the rescission notice and premium refund needed to establish rescission of its Florida policy.
  • Sharp View Diagnostic Imaging, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 50855(U)) FollowedThe insurer failed to prove exhaustion of applicable coverage, and the provider failed to establish its entitlement to summary judgment.

Similar decisions

  • GBI Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51882(U))The insurer's cross motion for summary judgment based on a New Jersey policy's arbitration requirement was denied on appeal.
  • Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 50219(U))New Jersey law governed the provider's claim, and its failure to prove medical necessity defeated its summary judgment motion.
  • Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2010 NY Slip Op 51963(U))The provider's notice of trial was vacated because its certificate of readiness incorrectly stated that discovery was complete.
  • ABA Chiropractic, P.C. v Geico Gen. Ins. Co. (2013 NY Slip Op 52002(U))The insurer's cross motion for summary judgment on medical necessity was denied on appeal because a triable issue remained.
  • Atlantic Chiropractic, P.C. v Geico Ins. Co. (2017 NY Slip Op 51253(U))The provider's summary judgment was reversed because the insurer raised factual issues concerning timely denials and medical necessity.
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