New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
June 28, 2012
ALEV MEDICAL SUPPLY, INC. AS ASSIGNEE OF DONALD JOACHIM,
ALLSTATE PROPERTY & CASUALTY INSURANCE CO., RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 8, 2010.
Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co.
Decided on June 28, 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., PESCE and ALIOTTA, JJ
The order granted defendant's motion to dismiss the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that arbitration was the proper forum for this dispute because a claim by a different provider of no-fault benefits, as the assignee of the same assignor and arising from the same accident, had already been arbitrated (citing In the Matter of the Arbitration between Alexander Berenblit, M.D./Donald Joachim and Allstate Insurance Company) or, in the alternative, that the award from that arbitration, in which the arbitrator had found that plaintiff's assignor had failed to appear for an examination under oath (EUO) and, thus, had failed to comply with a condition precedent to coverage, should be given collateral estoppel effect. The Civil Court granted defendant's motion on the ground that "a claim for this assignor and accident had been previously submitted to the American Arbitration Association" and, therefore, "a forum has already been chosen" (citing Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 ).
A prior arbitration proceeding involving one claimant provider seeking reimbursement of assigned first-party no-fault benefits does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even where the claims have been assigned by the same individual and have arisen from the same accident (see Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 21, 23 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19 [App Term, 2d & 11th Jud Dists 2005]; cf. Roggio, 66 NY2d 260 [holding that a claimant who elected to arbitrate disputed claims for first-party no-fault benefits waived the right to commence an action to litigate subsequent claims arising from the same accident]). Since the arbitration proceeding upon which the court relied had been commenced by a different provider, Alexander Berenblit, M.D., not plaintiff herein, the complaint was improperly dismissed on the ground that arbitration was the proper forum for this dispute.
We reject defendant's alternative ground for its motion as well. Defendant failed to demonstrate that it had timely denied the claims at issue based upon plaintiff's assignor's failure to appear for an EUO, and therefore that it is not precluded from asserting its proffered defense that plaintiff failed to comply with a condition precedent to coverage (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 ). Furthermore, 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 ). As it has not been demonstrated that plaintiff was a party, or in privity with a party, to the prior arbitration proceeding, the doctrine of collateral estoppel is inapplicable (see 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 at 23).
Accordingly, the order is reversed and defendant's motion to dismiss the complaint is denied.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 28, 2012
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