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…