The Law Office of Jason Tenenbaum, P.C.

Dismissal on arbitration grounds should be made through CPLR 7503

Natural Therapy Acupuncture, P.C. v Geico Ins. Co., 2015 NY Slip Op 25425 (App. Term 2d Dept. 2015)

“In Bay Med, P.C., this court held that dispute resolution is not mandatory pursuant to NJSA § 39: 6A-5.1 (a), as implemented by NJAC § 11:3-5.1 (a), which provides that a dispute regarding the recovery of no-fault benefits may be submitted to dispute resolution upon the initiative of either party to the [*2]dispute (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]). The insurance policy in question also states that a matter may be submitted to dispute resolution “on the initiative of any party to the dispute.” However, the existence of an option to arbitrate is not a ground for dismissal of a court action; such an option— if exercised by way of a motion to compel arbitration—is a ground to stay the court action (see CPLR 7503 [a]). As defendant has not moved to compel arbitration, defendant’s cross motion for summary judgment dismissing the complaint should have been denied (see Bay Med., P.C. v GEICO Ins. Co., 41 Misc 3d 145[A], 2013 NY Slip Op 52084[U]; Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 38 Misc 3d 140[A], 2013 NY Slip Op 50219[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).”

I agree that the proper mechanism to compel arbitration is through application of Article 75.  I also tend to believe that if Geico in their motion sought such other and further relief, the Court should have read CPLR 7503 relief as it is not dissimilar to the statutory grounds (3212[b]) to dismiss the complaint.  Is this another example of this Court bending to Rybak?  Who knows…

Pennsylvania law

Delta Diagnostic Radiology, P.C. v Infinity Group, 2015 NY Slip Op 25304 (2d Dept. 2015)

It is relatively rare to see a court vacate a consent order, but in the right circumstances they will do it.

“Subsequently, in January 2013, defendant moved for leave to renew its motion for summary judgment, contending that, after the entry of the Civil Court’s order, there had been “a change in the law that would change the prior determination” (CPLR 2221 [e] [2]). Defendant [*2]specifically referred to this court’s decisions in Craigg v Infinity Select Ins. Co. (38 Misc 3d 56 [App Term, 2d, 11th & 13th Jud Dists 2013]) and W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co. (36 Misc 3d 4 [App Term, 2d, 11th & 13th Jud Dists 2012]), which held that an insurer need not establish the underlying reasons for the retroactive rescission of the policy, but rather has the burden of establishing that it complied with the law of the sister state which permits retroactive rescission. Thus, defendant argued, contrary to the Civil Court’s April 14, 2011 order, based on the W.H.O. and Craigg cases, which were decided subsequent to April 14, 2011, defendant’s burden at trial was not to prove that the policy had been procured by fraud, but rather to demonstrate that the policy had been properly rescinded from its inception in accordance with Pennsylvania law”

…

“Thus, defendant demonstrated, prima facie, that it had validly rescinded the policy in accordance with Pennsylvania law by showing that, within 60 days of issuance of the policy, it had provided the insured with “a written statement of the reason for cancellation” (40 P.S. § 991.2002 [c] [3]) and that it had returned to the insured the premiums he had paid (see Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1).  In opposition to defendant’s showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Pennsylvania law.”

This is the long and short of it.  The Court seemingly gave Defendant a break.

Embarrassment or hubrus?

37 Ave Med., P.C. v Metlife Auto & Home Ins. Co., 2015 NY Slip Op 51293(U)(Civ. Ct. Kings Co. 2015)

How do you not research core issues before you tell a client you want to take a case to trial?  I hope the client was told that Rhode Island law would not support their position and the client voluntarily opted to take a chance the issue.  Also, if you are going to apply Rhode Island law, what is the standard for collection of medical bills?  Is there a requirement that the provider prove the services are necessary and related to injury at hand.  Alternatively, if the policy issuance state is not a no-fault state (neither compulsory or through election), wouldn’t the better argument be that New York law should apply viz the deemer, including the fraudulent procurement rules?  Certain things never cease to amaze me.

Good job to Evan Polansky- we have something in two weeks right?

 

Proofs insufficient under PA law

Quality Psychological Servs. v Infinity Prop. & Cas. Co., 2015 NY Slip Op 50645(U)(App. Term 1st Dept. 2015)

“While defendant-insurer submitted proof indicating that it properly rescinded the underlying insurance policy pursuant to Pennsylvania law based upon misrepresentations made by the insured, one Catrina Gordon, in the underlying policy application, defendant failed to demonstrate that plaintiff’s assignor, who was injured in an accident involving the Gordon vehicle, was “not an innocent third party” who should be precluded from receiving protection under the policy”

Fraudulent prcourement defnese

“In applying for the automobile insurance policy in Pennsylvania, the insured had indicated on her application that she resided in Pennsylvania and owned two vehicles which were garaged in Pennsylvania. The only connection between the policy and New York State was that plaintiff’s assignor, the insured’s husband, was injured while driving one of the insured vehicles in New York.”

“The Pennsylvania Supreme Court has held that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]). Defendant, in its motion papers, set forth facts demonstrating that the insured was the actual perpetrator of a fraud, and that, based thereon, defendant had rescinded the policy in accordance with Pennsylvania law.”

Invariably, the choice of law will militate in favor of the State where the vehicle was registered.  Thus, unless the issue involves an Assignor who said he lived upstate or Long Island as opposed to Brooklyn, the choice of law question will militate in favor of the state where Claimant lives.

Reargument granted and complaint dismissed under PA law

Optimal Well-Being Chiropractic, P.C. v Infinity Ins. Co., 2014 NY Slip Op 51203(U)(App. Term 2d Dept. 2014)

This fact pattern asked if under PA law, the injured person who was complicit in the scheme to obtain lower priced insurance could have his first-party benefits denied.  The answer, on reargument, is yes sir.

(1) PA Law applies: “Defendant issued the automobile insurance policy in Pennsylvania to the insured, who purportedly resided in Pennsylvania, for a vehicle which was purportedly garaged in Pennsylvania. The only connection between the policy and New York State is that plaintiff’s assignor was injured while riding in the insured’s vehicle in New York. Consequently, we find that Pennsylvania law is controlling under New York’s conflict of law rules ”

(2) PA Law substantiates the disclaimer: “[A]lthough Pennsylvania law provides for a common law right by the insurer to rescind a policy of insurance, in Erie Ins. Exchange v Lake(543 Pa 363, 375, 671 A2d 681, 687 [1996]), the Pennsylvania Supreme Court held that an automobile insurance policy cannot be retroactively rescinded with respect to third parties who were harmed through no fault of their own. In the case at bar, during his examination before trial, plaintiff’s assignor testified that his mother, the insured, had never resided in Allentown, Pennsylvania, and that he had driven his mother to[*2]Pennsylvania for the sole purpose of renewing her automobile insurance because the insurance was cheaper in Pennsylvania than in New York. Inasmuch as the aforementioned acts of the assignor make him complicit in the fraud perpetrated by his mother, he is not an innocent third party and, therefore, rescission of the subject insurance policy is effective with respect to him.”

Good to see logic prevail.

Policy can be rescined under PA law; proof insufficient as to particular Assignor

Delta Diagnostic Radiology, P.C. v Infinity Group, 2014 NY Slip Op 50602(U)(App. Term 2d Dept. 2014)

The EUO was sufficient to raise an issue of fact as to the fraudulent procurement issue.  Now, you need to subpoena the assignor for trial and have the Civil Court enforce a judicial subpoena.  I feel pains even thinking about how Defendant is going to win this at trial.  This is another example of how the assignment shields the EIP from being responsible for her sins.  Without the assignment, EIP has to appear and testify pursuant to subpoena; otherwise, the complaint may very well be stricken.  CPLR 2308.  The assignment blocks a 2308 penalty and, at best, can cause a matter to be stricken from the trial calendar during discovery when Assignor dodges a subpoena.  (Total Family v. Mercury)

There is no penalty for the less than innocent medical provider who knows (or should know) that all of Infinity’s insured’s/EIP’s are seemingly involved (somehow) with PA-NY rate evasion issues.  I know this just by reading every Infinity case from this Court;  it is the same issue over and over.  So I digressed.  Here is the holding:

“Pennsylvania law gives an insurer a common law right to rescind a policy of automobile insurance (see Klopp v Keystone Ins. Cos., 528 Pa 1, 595 A2d 1 [1991]). The Pennsylvania Supreme Court has held, however, that while an automobile insurance policy may be retroactively rescinded as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer, the policy may not be retroactively rescinded with respect to third parties “who are innocent of trickery, and injured through no fault of their own” (see Erie [*2]Ins. Exch. v Lake, 543 Pa 363, 375, 671 A2d 681, 687 [1996]). Although defendant, in its motion papers, set forth facts tending to demonstrate that the insured was the actual perpetrator of a fraud, and that, based on that fact, it rescinded the policy in accordance with Pennsylvania law, defendant’s submissions did not conclusively establish that plaintiff’s assignor was not an innocent third party. Consequently, defendant’s cross motion failed to make a prima facie showing of defendant’s entitlement to judgment as a matter of law.”

A choice of law analysis – PA law controls

Optimal Well-Being Chiropractic, P.C. v Infinity Ins. Co., 2013 NY Slip Op 52065(U)(App. Term 2d Dept. 2013)

“Defendant issued the automobile insurance policy in Pennsylvania to the insured, who [*2]purportedly resided in Pennsylvania, for a vehicle which was purportedly garaged in Pennsylvania. The only connection between the policy and New York State is that plaintiff’s assignor was injured while riding in the insured’s vehicle in New York. Consequently, we find that Pennsylvania law is controlling under New York’s conflict of law rules”

“Although Pennsylvania law provides for a common law right by the insurer to rescind a policy of insurance, in Erie Ins. Exchange v Lake (543 Pa 363, 375, 671 A2d 681, 687 [1996]), the Pennsylvania Supreme Court held that an automobile insurance policy cannot be retroactively rescinded with respect to third parties who were harmed through no fault of their own. Therefore, any rescission of the insurance policy in question did not affect the rights of the innocent assignor.”

(1) PA law applies because the policy was issued in PA and only connection to NY was the fact the MVA occurred in NY

(2) PA law disallows rescission of policy regarding innocent assignor

 

Delaware law applies

Flatbush Chiropractic, P.C. v GEICO Ins. Co., 2013 NY Slip Op 51104(U)(App. Term 2d Dept. 2013)

(1) Choice of Law

“Defendant sufficiently established that the relevant policy is a Delaware insurance policy, which was issued to a Delaware resident for an automobile registered in Delaware. Furthermore, the NF-2 form, which was signed by plaintiff’s assignor and proffered by defendant as an exhibit, revealed that the accident had occurred in Delaware. In view of Delaware’s significant contacts with the contract (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56, 60 [2000]), the application of Delaware law to the substantive issues is proper (see Matter of Allstate Ins. Co. [*2][Stolarz-New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; Auten v Auten, 308 NY 155, 160-161 [1954]). Delaware law requires minimum compensation for, among other things, medical expenses in the amount of $15,000 for one person in any one accident”

(2) Prima facie case

“As defendant has made a prima facie showing, through the affidavits of its claims and underwriting employees, and through the submission of documentary evidence, that the policy had a $15,000 medical expenses coverage limit and that it had been exhausted (see New York and Presbyt. Hosp. v Allstate Ins. Co., 28 AD3d 528 [2006]), defendant established its prima facie entitlement to judgment as a matter of law.”

New Jersey Law – but see where it all went wrong

 Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 2013 NY Slip Op 50219(U)(App. Term 2d Dept. 2013)

“In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was [*2]required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.”

…

“Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and an insurer can raise a lack of medical necessity defense at any time (see NJSA 39:6A-5; Kowaleski v Allstate Ins. Co., 238 NJ Super 210 [1990]). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey”

…

With respect to defendant’s cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant’s contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A-5.1 (a), as implemented by NJAC 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.

Geico should have moved pursuant to CPLR Article 75 to compel arbitration.  That would have been the proper relief, and would have gotten the result that Geico wanted.