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Interboro Insurance Co. v. Boris Kleyman Physician P.C

Sup Ct, Ny County

July 23, 2013

INTERBORO INSURANCE COMPANY, Petitioner,
v.
BORIS KLEYMAN PHYSICIAN P.C, HILLSIDE SURGICARE, INTEGRAL ASSIST MEDICAL P.C, LONGEVITY MEDICAL SUPPLY, INC., LOVE CHIROPRACTIC, P.C, MEDCO TECH INC., PROGRESSIVE ORTHOPEDICS, PLLC and STAND-UP MRI OF BENSONHURST, P.C, Respondents. Index No. 152395/2013

Unpublished Opinion

DECISION/ORDER

HON. CYNTHIA S. KERN, J.S.C.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:

Papers ..................................................................................Numbered

Notice of Motion and Affidavits Annexed.................................... 1

Affirmation in Opposition............................................................ 2

Replying Affidavits...................................................................... 3

Exhibits...................................................................................... 4

Plaintiff commenced the instant action against defendants seeking a declaratory judgment that defendants are not entitled to no-fault coverage or reimbursement for their claims submitted on behalf of plaintiff s insured Violette Charles. Plaintiff now moves for an order granting the following relief: (a) pursuant to CPLR § 2201 and § 7503(c) staying the pending arbitrations between plaintiff and defendants Love Chiropractic, P.C. ("Love") and Progressive Orthopedics, PLLC ("Progressive") pending the resolution of the instant action; (b) pursuant to CPLR § 326 and § 327 further staying the arbitrations for purpose of removing the Arbitrations to this court; (c) pursuant to CPLR § 602 consolidating the arbitrations with the instant matter; and (d) staying interest on the arbitration matters pending a determination on the instant motion. Defendants have cross-moved for an order pursuant to CPLR § 3211(a)(1) and (5) dismissing plaintiffs summons and complaint on the ground that the instant action violates their right to arbitrate the I matter and awarding them attorney's fees or, in the alternative, an order pursuant to CPLR § 2004 granting defendants additional time to answer plaintiffs complaint. For the reasons set forth below, plaintiffs motion is denied and defendants' cross-motion is granted in part.

The relevant facts are as follows. On December 23, 2011, defendants' assignor Violette Charles was allegedly involved in an automobile accident wherein she sustained bodily injuries (the "Accident"). Thereafter, plaintiff sought treatment from the various defendants. As payment for said services, Ms. Charles assigned her right to collect first party no-fault benefits to the various defendants. According to plaintiffs complaint, plaintiff denied defendants' claims based upon their alleged failure to appear for duly scheduled Examinations Under Oath ("EUOs").

Prior to the commencement of this action, defendants Love and Progressive submitted their disputes regarding reimbursement of first-party no-fault benefits to arbitration before the New York No-Fault Conciliation Center of the American Arbitration Association (the "AAA"). Additionally, according to the affidavits submitted by defendants Klyeman, Hillside, Integral and Medco, they also seek to have their claims adjudicated by the AAA but have not yet submitted a notice to arbitrate.

Plaintiff now moves to stay the arbitration proceedings already initiated by Love and Progressive and to have those proceedings consolidated with this Supreme Court declaratory judgment action. Defendants cross-move to dismiss the instant action on the ground that Insurance Law Section 5106 requires the insurer to afford first-party claimants the option to elect the arbitration forum and plaintiff cannot now seek to deny defendants that right by initiating a declaratory judgment action in the Supreme Court.

Pursuant to Insurance Law Section 5106(b), "[e]very insurer shall provide a claimant with the option of submitting any dispute involving the insurer's liability to pay first party benefits ... to arbitration." Additionally, the No Fault Mandatory Personal Injury Protection Endorsement provides:

Arbitration. In the event any person making a claim for first-party benefits and the Company do not agree regarding any matter relating to the claim, such person shall have the option of submitting such disagreement to arbitration pursuant to procedures promulgated ...

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