Dayna Physical Therapy, P.C. v Travelers Ins. Co., 2013 NY Slip Op 50322(U)(App. Term 2d. Dept. 2013)
“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, pursuant to CPLR 3211 and CPLR 3212, to dismiss the complaint. Defendant contended that, pursuant to Roggio v Nationwide Mut. Ins. Co. (66 NY2d 260 [1985]), plaintiff was precluded from litigating its claims for reimbursement of assigned first-party no-fault benefits since plaintiff’s assignor had, prior to this action, elected to arbitrate claims for no-fault benefits which he had not assigned and which arose out of the same accident as was involved in the instant action”
…
“The Civil Court properly denied defendant’s motion. As the Civil Court correctly noted, since plaintiff’s assignor had executed the assignment of benefits to plaintiff prior to his commencement of his own arbitration, the holding in Roggio (66 NY2d 260) does not apply here and, thus, plaintiff was not precluded from litigating the claims at issue in this action”
Roggio appears to be strictly construed to a prior election that a real plaintiff makes in adjudicating outstanding no-fault billing. Yet, an EIP who arbitrates bills and loses can collaterally estop his assignee in a future litigation or arbitration. Triboro Quality Med. Supply, Inc. v State Farm Mut. Auto. Ins. Co.,36 Misc.3d 131(A)(App. Term 1st Dept. 2012)
