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The powers of a court to vacate an arbitration award March 11, 2019

Matter of Miller v Elrac, LLC, 2019 NY Slip Op 01544 (1st Dept. 2019)

(1) ”  Since the master arbitrator found that the no-fault arbitrator reached the decision in a rational manner and that the decision was not arbitrary or capricious, incorrect as a matter of law, in excess of policy limits, or in conflict with other no-fault arbitration proceedings there were no grounds for its vacatur; the motion court correctly upheld the master arbitrator’s determination “

(2) “Contrary to petitioner’s argument, there is no basis to conclude that the arbitrator made a mistake of law by ignoring whether petitioner’s condition could have worsened after respondent’s independent medical examination; she just made a factual determination that it had not “

My only comment on this case is that the lower arbitrator made two significant mistakes. First, the arbitrator said that Petitioner should lose because of a “gap in treatment”. Besides gaps in treatment having no applicability outside Ins Law 5102(d) motions, Petitioner suffered a fracture. Second, the Petitioner developed a tumor on the finger that broke and his condition declined subsequently. The lower arbitrator looked at all records until the one where the tumor arose. The record is clear.

Anyway, arbitration can be just that: arbitrary.

Interest through payment March 11, 2019

B.Z. Chiropractic, P.C. v Allstate Ins. Co., 2019 NY Slip Op 50241(U)(Sup. Ct. Queens Co. 2019)

The Appellate Term “suggested” that interest runs at 9% per year after a judgment is entered. Supreme Court Queens County recognized that the Appellate Term’s statement was advisory at best. The Court has now held, probably properly, that 2% interest runs until the judgment is paid. While Allstate may appeal this decision, it is likely to be affirmed.

” The portion of Petitioner’s Petition seeking a declaratory judgment on the proper interest rate which accrues on first party no-fault benefits after the entry of judgment is decided as follows…At the time that the underlying claims were filed, said interest accrued at a compound rate. It is well settled that “with respect to interest on first party benefits due under the no-fault statute,…the Insurance Law supersedes the provisions for interest contained in CPLR 5002, 5003 and 5004 (Gov’t Emp. Ins. Co. v. Lombino, 57 AD2d 957, 959, 394 N.Y.S.2d 898 [1977]) The policies of encouraging prompt payment of claims and reducing litigation outweigh limits on interest found elsewhere, SeeMatter of McKenna v County of Nassau, Off. of County Attorney, 97 AD2d 440 (2d Dept 1983). The interest rate on No-Fault actions is intentionally punitive, with severe penalties in order to encourage prompt adjustment of claims. As such, the rate of interest is not reduced simply because the claim has been reduced to a judgment. While such claims remain overdue, they accrue interest at two percent per month. As such, plaintiff is entitled to a declaratory judgment recognizing same. “

Service! March 2, 2019

Wilmington Trust, N.A. v Pape, 2019 NY Slip Op 01449 (2d Dept. 2019)

I remember as a younger lawyer serving pro-se Defendants in Civil Court, Queens County after the Defendant moved to dismiss for failure to obtain personal jurisdiction. and we were never going to bring the process server down for a traverse hearing. Oh classic.

” Moreover, the plaintiff’s re-service of the summons and verified complaint pursuant to CPLR 311-a during the pendency of the defendant’s motion to dismiss obviated the defendant’s jurisdictional objection” 

Appellate Division hold that Civil Court lacks subject matter over DJ actions March 2, 2019

State Farm Fire & Cas. Co. v Jewsbury, 2019 NY Slip Op 01247 (2d Dept. 2019)

This involves the unsuccessful argument that Civil Court actions block Supreme Court declaratory judgment actions. The Appellate Divisions have never ruled in favor of the providers under a CPLR 3211(a)(4) dismissal theory. If that was the holding, I would not really care much about this.

But – we finally have clarity regarding the ability of an insurance carrier to seek declaratory judgment relief in Civil Court. The answer was what we all knew it was after Fresh Acupuncture, but later confused due to Countrywide. A well reasoned decision.

“After State Farm received and failed to pay first-party beneficiary claims submitted by Parisien, Parisien commenced two actions in the Civil Court of the City of New York for payment (see Insurance Law § 5106). While those actions were pending, State Farm commenced this action in the Supreme Court, Kings County. State Farm seeks a judgment declaring that it is not required to pay any claims related to the accident on the policy it issued.”

” The Supreme Court improvidently exercised its discretion in granting that branch of Parisien’s motion which was pursuant to CPLR 3211(a)(4) to dismiss the complaint insofar as asserted against him. A declaratory judgment resolving the issue of State Farm’s obligation to pay any claims on the policy with respect to the accident, and naming all providers who may seek reimbursement under the policy, would further the interest of judicial economy. Indeed, the Civil Court may not issue the declaratory relief State Farm seeks in this action (see Fresh Acupuncture, P.C. v Interboro Ins. Co., 56 Misc 3d 98, 100 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]; cf. CPLR 3001; Insurance Law § 3420[a][6]; Mazzei v Kyriacou, 139 AD3d 823, 824), and the other providers who may seek no-fault reimbursements relating to that collision are not parties to the two actions pending in the Civil Court. “

Poor opposition papers cannot be remedied on appeal March 2, 2019

Preferred Ortho Prods., Inc. v 21st Century Ins. Co., 2019 NY Slip Op 50224(U)(App. Term 2d Dept. 2019)

” Plaintiff’s sole appellate contention with respect to defendant’s motion, “that the address used on the IME scheduling letters improperly included an apartment number that does not appear on plaintiff’s claim forms, will not be considered, as it is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015])” (Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 53 Misc 3d 141[A], 2016 NY Slip Op 51523[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). “

It is nice to have one of the former administrative judges of Civil Court, Queens County when no-fault causes ruled that Court’s docket sit on the Appellate Term, Second Department. Having argued Market Street v. Global Liberty with that judge on the panel, you can tell that the Court finally has someone on it who understands the reality of this practice. It is no irony that certain decisions are leaning a certain away this year,