Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated March 22, 2010.
Alev Med. Supply, Inc. v Progressive N. Ins. Co.
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ
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.
Decision Date: April 06, 2011
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