Prior Arb?February 1, 2020

Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 2019 NY Slip Op 51890(U)(App. Term 2d Dept. 2019)

My only thought would be by actively litigating the matter in the Civil Courts, doesn’t the insurance carrier waive its right to demand arbitration? While arbitration in NY rests solely upon the provider, a carrier when given the right to request it can waive it under certain conditions.

“By decision and order dated July 14, 2017 (57 Misc 3d 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), this court reversed the June 9, 2014 order, insofar as appealed from, and denied the branches of defendant’s cross motion seeking leave to amend defendant’s answer to assert that the action is barred by the doctrine of res judicata and, upon such amendment, to award defendant summary judgment on that ground. The matter was remitted to the Civil Court for a new determination of plaintiff’s motion for summary judgment and for a determination of the remaining branches of defendant’s cross motion ”

“With respect to the branch of defendant’s cross motion seeking summary judgment based on plaintiff’s previous election to arbitrate the claims, it is undisputed that after plaintiff had commenced an arbitration, it had been withdrawn with prejudice. However, “[p]laintiff, by electing to arbitrate, waived its right to commence an action to litigate its claims arising out of the same motor vehicle accident” (563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005]; Rockaway Blvd. Med. P.C. v Progressive Ins., 2003 NY Slip Op 50938[U], *2 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [where arbitration was commenced and the arbitrator dismissed the claim without prejudice to renewal, the court stated, “[i]t is well settled that once a claimant chooses arbitration, it cannot resort to the courts”]).”

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