Alev Med. Supply, Inc. v. Allstate Prop. & Cas. Ins. Co.

• Citation: 957 N.Y.S.2d 263,36 Misc.3d 132,2012 N.Y. Slip Op. 51294
• Decision Date: 28 June 2012
• Docket Number: No. 2010–3343 Q C.,2010–3343 Q C.
• Court: New York Supreme Court — Appellate Division
• Parties: ALEV MEDICAL SUPPLY, INC. as Assignee of Donald Joachim, Appellant, v. ALLSTATE PROPERTY & CASUALTY INSURANCE CO., Respondent.

36 Misc.3d 132
957 N.Y.S.2d 263
2012 N.Y. Slip Op. 51294

ALEV MEDICAL SUPPLY, INC. as Assignee of Donald Joachim, Appellant,
v.
ALLSTATE PROPERTY & CASUALTY INSURANCE CO., Respondent.

No. 2010–3343 Q C.

Supreme Court, Appellate Term,
11th and 13th Judicial Districts.

June 28, 2012.

Present: WESTON, J.P., PESCE and ALIOTTA, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 8, 2010. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to dismiss the complaint on the ground that arbitration was the proper forum for this dispute because a claim by a different provider of no-fault benefits, as the assignee of the same assignor and arising from the same accident, had already been arbitrated (citing In the Matter of the Arbitration between Alexander Berenblit, M.D./Donald Joachim and Allstate Insurance Company ) or, in the alternative, that the award from that arbitration, in which the arbitrator had found that plaintiff's assignor had failed to appear for an examination under oath (EUO) and, thus, had failed to comply with a condition precedent to coverage, should be given collateral estoppel effect. The Civil Court granted defendant's motion on the ground that “a claim for this assignor and accident had been previously submitted to the American Arbitration Association” and, therefore, “a forum has already been chosen” (citing Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260 [1985] ).

A prior arbitration proceeding involving one claimant provider seeking reimbursement of assigned first-party no-fault benefits does not preclude another provider from commencing its own action seeking reimbursement of assigned no-fault benefits, even where the claims have been assigned by the same individual and have arisen from the same accident ( see Jamaica Med. Supply, Inc. v. N.Y. Cent. Mut. Fire Ins. Co., 34 Misc.3d 21, 23 [App Term, 2d, 11th & 13th Jud Dists 2011]; A.B. Med. Servs. PLLC v. USAA Gen. Indem. Co., 9 Misc.3d 19 [App Term, 2d & 11th Jud Dists 2005]; cf. Roggio, 66 N.Y.2d 260 [holding that a claimant who elected to arbitrate disputed claims for first-party no-fault benefits waived the right to commence an action to litigate subsequent claims arising from the same accident]...