Election to arbitrate

Ellen Sue Ginsberg, D.O., P.C. v New York City Tr. Auth., 2020 NY Slip Op 50431(U)(App. Term 2d Dept. 2020)

Once you make an election to arbitrate with respect to a Assignee/Assignor, you have given up the ability to change or “flit” forums. This election is not carrier specific if more than one carrier is responsible for first party benefits. It makes sense.

“In this action by a provider to recover assigned first-party no-fault benefits, defendant New York City Transit Authority (NYCTA) moved to dismiss the complaint insofar as asserted against it on the ground that plaintiff had previously elected to arbitrate its claims arising out of the underlying accident. Insofar as is relevant to this appeal, the District Court denied the motion on the ground that the previously arbitrated claims were against GEICO, not NYCTA.

Contrary to the determination of the District Court, since plaintiff’s claims against NYCTA are for treatment of the same assignor, for injuries arising from the same accident, plaintiff is bound [*2]by its initial election to arbitrate these claims, even though asserted against a different entity (see Roggio v Nationwide Mut. Ins. Co.,66 NY2d 260 [1985]; American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761, 763 [2013]; Cortez v Countrywide Ins. Co., 17 AD3d 508, 509 [2005]; 563 Grand Med., P.C. v Country-Wide Ins. Co., 61 Misc 3d 136[A], 2018 NY Slip Op 51556[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Cockett v Nationwide Mut. Ins. Co., 143 Misc 2d 249 [App Term, 2d Dept, 2d & 11thJud Dists 1988])”

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