August 23, 2012

WJ Acupuncture, P.C. v Nationwide Mut. Ins. (2012 NY Slip Op 51648(U))

https://www.beynensonlaw.com/case-law/wj-acupuncture-p-c-v-nationwide-mut-ins-2012-ny-slip-op-51648u/

Court: Appellate Term, Second Department
Decided: August 23, 2012
Citation: 2012 NY Slip Op 51648(U) · 36 Misc 3d 148(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Provider prevailed
Issues: Declaratory judgment, res judicata

Cite as

WJ Acupuncture, P.C. v Nationwide Mut. Ins., 36 Misc 3d 148(A), 2012 NY Slip Op 51648(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.

The insurer failed to establish that the providers were parties to, or in privity with a party to, an earlier arbitration. Two providers' consolidated no-fault actions were dismissed at the outset of a nonjury trial on collateral-estoppel grounds. The insurer relied on an award finding that a third provider had not established timely notice within 90 days under former 11 NYCRR 65.11 (m) (2). Collateral estoppel applies only against a party or privy to the earlier proceeding, and the required relationship was not demonstrated. The Appellate Term, Second Department, reversed the judgment, vacated the dismissal order, denied the insurer's motion, and remitted the matter for further proceedings.

Reported in New York Official Reports at WJ Acupuncture, P.C. v Nationwide Mut. Ins. (2012 NY Slip Op 51648(U))

[*1]

WJ Acupuncture, P.C. v Nationwide Mut. Ins.

2012 NY Slip Op 51648(U) [36 Misc 3d 148(A)]

Decided on August 23, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2012

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2010-2894 Q C.

WJ Acupuncture, P.C. and QUEENS-BROOKLYN MEDICAL REHAB, P.C. as Assignees of RAFAEL YUNAYEV, Appellants, —
against
Nationwide Mutual Insurance, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered March 29, 2010, deemed from a judgment of the same court entered October 8, 2010 (see CPLR 5520 [c]). The judgment, entered pursuant to the March 29, 2010 order granting defendant’s motion to dismiss the complaints in consolidated actions, dismissed the complaints.

ORDERED that the judgment is reversed, without costs, the order granting defendant’s motion to dismiss the complaints is vacated, defendant’s motion is denied, and the matter is remitted to the Civil Court for all further proceedings.

Plaintiffs, who had provided health care services to the same assignor for injuries arising out of the same accident, commenced separate actions to recover assigned first-party no-fault benefits. The actions were consolidated. At the commencement of a nonjury trial, defendant moved to dismiss the complaints based on the doctrine of collateral estoppel, arguing that, at a prior arbitration proceeding involving defendant and a third provider who had provided health care services to the same assignor for injuries arising out of the same accident, the arbitrator had [*2]found that the third provider had failed to establish a timely notice of claim within 90 days of the loss, as required under former Insurance Department Regulations (11 NYCRR) § 65.11 (m) (2) (now 30 days, see Insurance Department Regulations [11 NYCRR] § 65-1.1). This determination, defendant argued, barred relitigation of the issue in the Civil Court, requiring the complaints’ dismissal. The Civil Court granted the motion. We reverse.

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 either a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., 36 Misc 3d 132[A], 2012 NY Slip Op 51294[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; 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 19 [App Term, 2d & 11th Jud Dists 2005]).

Accordingly, the judgment is reversed, the order granting defendant’s motion to dismiss the complaints is vacated, defendant’s motion is denied, and the matter is remitted to the Civil Court for all further proceedings.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: August 23, 2012

Cited in this decision

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

Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co. (2012 NY Slip Op 51294(U)) FollowedOne provider's arbitration does not bar another provider's action on claims assigned by the same person and arising from the same accident.
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.
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.

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