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Article 75 lay-upSeptember 4, 2019

Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc., 2019 NY Slip Op 06445 (1st Dept. 2019)

I know AAA will not like this decision. But as we told the master arbitrator in our brief, this is the law. The master refused to listen.

The above thought actually traces back to a recent snarky post on the No-fault group on Facebook One poster I think hailed a AAA decision about the inability to delay for recorded statements as gospel. Another poster found a Civil Court case saying the same thing. I then found an App Term case from 12 years prior that was contrary. What is my point? Do not trust AAA (or the App. Term) on the law if you think you are right.

Truth be told, the App. Div First Department will grant you leave if you can show them that an App Term decision is inconsistent with precedent, common sense or of significant import. While I do not agree with every decision from that Court, you know that your applications are getting attention at that tribunal. Again, the First Department only hears cases from two counties and has significant resources to give cases the attention they deserve.

The Second Department, however, is a lot more sparring with their grants of leave. They will only grant leave if the issue is hot button and involves millions of dollars, if not addressed. For proof, ask yourself why that court heard a pre-LMK interest case and will hear the Alleviation case. That said, leave will almost never be granted in mundane cases.

In fact, if you were to track First and Second Department CPL 440 leave applications, you would see the same trend. I do not blame the Second Department for its stinginess in granting leave application, despite being the victim of perfunctory leave denials. That Court is the busiest appellate court in the country.

Time for a Fifth Appellate Division anyone?

As to this case:

“Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered August 31, 2018, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, and the petition granted.

The master arbitrator’s award was arbitrary because it irrationally ignored the controlling law that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018]; Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C., 139 AD3d 645, 646 [1st Dept 2016]; American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]).”

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