Permanent Gen. Assur. Co. v Thomas, 2016 NY Slip Op 30071(U)(Sup. Ct. NY. Co. 2016)
I put this DJ on the same category as the legal geniuses who brought us “Matter of Allstate Prop. & Cas. Ins. Co. v New Way Massage Therapy P.C.” I will explain my rationale. Thomas involved a 2011 motor vehicle accident and my reading of the case file showed that only active claims involved the MUA’s that the upstate facilities let by Dr. Tracy the third and his minions. All of the other “defendants” were dead claims. Phantom claims as of 2016. Thus, the DJ centered around 3 or 4 claims where arbitration demands were made. I get where the carrier was going and what defense counsel recommended or sold. But what bugged me is that the DJ was brought in Manhattan. There was no link to Manhattan. The carrier does not even have an office in New York (although they are opening one) and the treatment was in Erie Country. It was an obnoxious DJ in that there was no downstate nexus. The result, besides making DJ’s more difficult to bring, represented a sense of poetic justice you could say.
The holding? Well if there is an arbitration that is brought, the DJ should be dismissed. I would note while there are a few trial court cases that say otherwise, I did not see any cited in the insurance carrier’s papers. The other issue I would note when reviewing the DJ is that 11 NYCRR 3.5(d) is sui generis to each bill. One cannot produce a bill that complies with 3.5(d) (a timely bill from Scott Croce was provided) and say the DJ is timely to each provider and each bill.
Happy President’s day.
